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'  '      •  ill/ 


R  E  P  O  E  T  , 

II  * 

OF  THE  TRIAL  OP 

C  A  S  T  N  E  R    HAN  WAY 

FOB 

TREASON, 

IN  THE  RESISTANCE  OF  THE  EXECUTION  OF 

THE   FU6ITIYE   SLAVE  LAW 

OF  SEPTEMBER,  1850. 

BEFORE  JUDGES  GRIER  AND  KANE, 

IN  TEE  CIRCUIT  COURT  OF  THE  UNITED  STATES,  TOR  THE  EASTERN  DISTRICT  OF  PENNSYLVANIA. 
HELD  AT  PHILADELPHIA  IN  NOVEMBER  AND  DECEMBER,  1851. 

TO  "WHICH  IS  ADDED 

AN  APPENDIX, 

CONTAINING  THE  LAWS  OF  THE  UNITED  STATES  ON  THE  SUBJECT  OF  FUGITIVES  FROM  LABOR, 
THE  CHARGES  OF  JUDGE  KANE  TO  THE  GRAND  JURIES  IN  RELATION  THERETO, 
AND  A  STATEMENT  OF  THE  POINTS  OF  LAW  DECIDED  BY  THE  COURT  DURING  THE  TRIAL. 


BY   JAMES   J.  BOBBINS, 

OF    THE  PHILADELPHIA  BAR. 
FROM  THE  NOTES  OF 

ARTHUR  CANNON  AND   SAMUEL  B.  DALRYMPLE, 

PHONOGRAPHIC  REPORTERS  APPOINTED  BY  THE  COURT  FOR  THIS  CASE. 


PHILADELPHIA: 
KING  &  BAIRD   No.  9  SANSOM  STREET. 
1  8  52. 


Entered,  according  to  Act  of  Congress,  in  the  year  1851,  by 
KING  &  BAIRD, 

In  the  Clerk's  Office  of  the  District  Court,  in  and  for  the  Eastern  District  of  Pennsylvania. 


KING  &  BAIRD,  PRINTERS, 

No.  9  Sansom  Street,  Philadelphia. 


PREFACE. 


The  interest  manifested  in  this  Trial,  has  induced  the  Reporter  to  give  it  to 
the  People  in  a  form  in  which  a  report  of  it  can  best  be  preserved  for  future 
reference.  The  Act  of  Congress  passed  in  1850,  relative  to  the  surrender  of 
fugitives  from  labor,  had  met  in  many  parts  of  the  Union  an  expression  of  deep 
and  determined  opposition ;  some  had  expressed  their  belief  that  it  was  uncon- 
stitutional, others  that  it  was  in  violation  of  the  law  of  God  (or,  as  it  was  termed, 
ii  the  higher  law,")  and  many  had  counselled  resistance  to  all  attempts  to  execute 
process  issued  under  it. 

An  attempt  to  execute  such  process  upon  alleged  fugitive  slaves  in  Lancaster 
County,  in  this  State,  was  met  by  a  thorough,  determined,  and  organized  resist- 
ance, resulting  in  the  defeat  of  the  officers  charged  with  the  execution  of  the 
warrants  and  the  murder  of  one  of  the  claimants  of  the  fugitives.  The  numbers 
engaged  in  this  proceeding,  and  the  manifest  preparation  which  had  been  made 
for  any  such  occasion,  induced  the  officers  of  the  law  to  institute  prosecutions  for 
the  highest  offence  against  the  Government,  namely  Treason  ;  and  the  ability 
which  marked  the ,  Trial  throughout,  the  patient  attention  of  the  Judges,  the 
eloquence  and  learning  of  the  Counsel,  and  the  full  examination  of  every  matter 
of  fact  and  law  in  any  manner  involved,  gave  to  the  trial  a  deep  and  abiding 
importance,  such  as  will  make  its  perusal  interesting  to  the  general  reader,  and 
of  indispensable  use  to  the  Legal  Profession.  The  Reporter  claims  credit  for 
nothing  but  accuracy  in  the  report  of  the  testimony,  speeches,  charges  and  pro- 
ceedings ;  and  for  that  accuracy  he  is  mainly  indebted  to  those  who,  by  the 
valuable  art  of  Phonography,  were  enabled  to  transfer  to  paper  every  expression. 
By  the  kindness  of  both  Court  and  Counsel,  he  has  been  enabled  to  add  much 
that  is  really  valuable  to  the  mere  report ;  and  he  now  submits  this  book  to  the 
Public,  as  the  faithful  narrative  of  an  item  in  our  country's  history  not  soon  to 
be  forgotten,  and  the  salutary  influence  of  which  will  be  for  a  long  time 
remembered. 


TREASON  CASES. 

REPORTED  PHOXOGRAPHICALLTTr 

ARTHUR  CANNON  and  SAMUEL  B.  DALRYMPLE, 

SWORN  REPORTERS,  APPOINTED  BY  THE  GOVERNMENT. 


In  the  Circuit  Court  of  the  United  States  for  the  Eastern  District  of  Pennsylvania,  in  the  Third  Circuit. 
OCTOBER   SESSIONS,  1851. 

BEFORE  JUDGES  GRIER  AND  KANE. 


Philadelphia,  Monday,  November  24,  1851. 

[the  court  was  opened  at  eleven  o'clock.] 

Clerk.  "All  Petit  Jurors  summoned  here 
this  day,  'will  please  answer  to  their  names." 


President  of  the  Bank  of  North  America,  and  it 
stops  all  the  business  of  the  Bank  if  he  is  not 
there.  Secondly.  Here  is  a  certificate  from  a 
medical  gentleman,  that  he  is  subject  to  a  bron- 
chial affection,  and  that  confinement  in  a  warm 


The  list  of  jurors  was  called,  and  seventy-eight !  room,  would  be  sure  to  cause  sickness." 
answered  to  their  names.  Judge  Kane  reads  the  certificate. 

Judge  Grier.  Now  call  the  defaulters,  and  Mr.  R.  R.  Smith.  "I  requested  him  to  have 
those  who  are  in  default  until  to-morrow  morn-  j  this  certificate  from  his  physician.  He  is  Presi- 
ing,  will  be  fined  a  hundred  dollars.  I  dent  of  the  Bank,  and  when  he  is  away,  it  stops 

Mr  E.  Ingersoll.    "  If  the  Court  please,  I j  the  business." 
present  the  excuse  of  Thomas  McKean  as  a  J    Judge  Grier.    "  Could  not  the  Cashier  attend 
juror.    I  hold  in  my  hands  a  certificate,  from  a  ;  to  the  business  of  the  bank,  in  the  absence  of  the 
physician,  that  he  is  not  able  to  attend."  (President?1' 

Judge  Kane.  "Judge  Bell,  of  Bucks  County.  I  Mr.  Smith.  "  It  is  not  so  in  this  case  :  he  is 
is  upon  the  panel,  and  as  he  is  holding  Court  j  the  only  person  who  is  authorized  to  attend  to 


there,  he  has  asked  leave  of  absence  until  Mon- 
day next." 

Judge  Grier.    "  On  the  certificate   of  his 


the  discounting;  and  as  Mondays  and  Thursdays 
are  the  discount  days  of  the  bank,  he  would  be 
much  obliged  to  your  honors,  if  you  would  ex- 
physician,  Mr.  Thomas  McKean  being  incapaci-  j  cuse  him  on  those  days." 

tated  to  perform  the  duties  of  a  juror,  is  excused,  j  Judge  Grier.  "I  could  get  a  certificate  of 
If  he  recover  his  health,  and  is  able  to  attend  i  that  sort  from  a  physician,  to  excuse  my  attend- 
hereafter,  we  hope  that  he  will  be  able  to  return,  i  ance ;  and  I  am  sure,  if  we  get  too  lax,  the  gen- 
as  we  may  have  a  very  long  term  before  us.  The  j  tlemen  will  all  say,  as  was  said  on  a  certain  other 
marshal  will  be  pleased  to  mark  all  those  gentlemen  j  occasion.  "  I  pray  thee,  have  me  excused." 
who  are  excused,  and  those  who  do  not  answer;  Mr.  R.  R.  Smith.  "Bis  position  as  Presi- 
by  to-morrow  morning,  will  be  fined  one  hundred  :,  dent  of  the  bank  is  such,  that  it  would  be  inter- 
dollars,  as  a  matter  of  course.  We  are  com-  j  fering  with  the  convenience  of  the  public,  to  a 
pelled  to  enforce  the  attendance  of  jurors  here,  j  very  great  extent ;  It  is  not  private  business." 
unless  they  are  sick.  j     Judge  Kane.    "I  doubt  very  much,  whether 

Judge  Kane.  "We  have  the  certificate  of  a; we  shall  find  an  adequate  number  of  jurors  of 
physician,  that  Mr.  Piatt's  health  is  such,  that;  the  class  summoned  by  the  Marshal,  whose  busi- 
it  would  be  extremely  hazardous,  for  him  to  serve  j  ness  from  home,  would  not  be  prejudicial  to  the 
as  a  juror."  community  there. 

Judge  Grier.  "  Mark  him  excused.  It  will  j  Mr.  R.  R.  Smith.  "  Will  your  honors  excuse 
be  an  understanding,  that  those  who  have  ap- 1  him  till  next  Tuesday." 

plied,  and  are  excused  on  account  of  sickness,  if <  Judge  Kane.  "  He  is  excused  till  Tuesday  of 
they  should  recover  sufficiently,  in  a  short  space  '  nest  week." 

of  time,  as  this  jury  will  probably  have  to  be  on  1  Mr.  J.  Cadwalader.  "I  would  state,  that 
the  ground  till  next  Spring,  they  must  be  here  in  the  case  of  John  R.  Neff,  he,  to  my  knowledge, 
as  soon  as  possible."  jwas  detained  here  unavoidably,  from  the  per- 

Mr.  Williams.  "Mr.  Piatt  is  subject  to  vio-  '<  formance  of  duties  in  Cincinnati,  which  he  left 
lent  headache,  and  he  has  desired  me  to  mention  I  to  perform,  before  the  service  of  notice  of  his 
it  to  the  Court."  i  duty  as  juror  for  this  term.    I  can  make  legal 

Mr.  R.  R.  Smith.  "I  have  an  application  I  proof  of  it,  if  the  Court  require  it;  but  I  know 
from  Mr   John  Richardson,  and  there  are  two  I  it  of  my  own  knowledge. 

reasons  why  he  should  be  excused.    First,  he  is      The  other  case  I  would  present,  is  that  of 

2  9 


10 


TREASON  CASES. 


George  Cadwalader,  another  juror.  Whether  he  j 
has  a  proper  excuse  or  not,  he  will  state  himself 
to-morrow.  only  wish  lo  say,  that  he  has  not 
received  the  4offce  |?n  raclount  of  absence  ;  he 
will  reti|rnltoJday,  Jtnd  -twin  present  himself  to- 
morrow Task  his  case  to  be  continued  till  then. 
As/ to  John  R.  NelF,  he  went  away  to  Cincinnati 
"oefore  the  notice  was  served.'' 

Judge  Grier.  "That  is  sufficient,  he  is  ex- 
cused permanently.  Stop,  I  have  a  word  if  you 
please  ;  if  he  returns  here,  and  has  not  some 
other  excuse,  we  shall  then  demand  his  attend- 
ance." 

Mr.  Cadwalader.  "  Should  he  return,  which 
however,  he  will  not  be  able  to  do,  he  will  attend 
to  his  duty." 

Mr.  J.  W.  Ashmead.  "  Here  is  the  case  of  a 
juror  named  Charles  Massey,  who  has  handed  me 
the  certificate  of  a  physician,  which  certifies  that 
his  condition  is  such,  that  it  will  be  injurious  to 
his  health,  for  him  to  attend.  Mr.  Massey  will 
present  his  case  himself  to  the  Court. 

Mr.  Massey.  "My  disease  is  angina  pectoris, 
I  have  to  walk  very  slowly,  and  then  frequently 
have  to  stop." 

Mr.  Ashmead.  "I  have  nothing  to  do,  but 
to  present  the  certificate  at  the  request  of  the 
juror.  Your  honor  has  seen  what  is  upon  the 
face  of  it." 

Mr.  Massey.  "  Any  violent  exertion  will 
bring  on  the  disease." 

Judge  Grier.  "But  sitting  still  would  not 
bring  it  on." 

Mr.  Massey.  "Any  agitation  will  bring  it 
on." 

Judge  Grier.  "  I  am  in  nearly  the  same 
situation  nryself." 

Mr.  Massey.  "  I  am  debilitated,  or  other- 
wise, I  should  have  no  objection  at  all ;  the  dis- 
ease comes  on  very  suddenly." 

Judge  Grier.  "  We  will  consider  it;  if  you 
should  happen  to  be  called  on  a  jury,  and  not 
challenged,  then  you  can  raise  the  point,  and  we 
will  see.    We  will  hold  it  under  consideration." 

Mr.  Massey.  "In  addition  to  that,  there  is 
a  sickness  in  my  family,  my  wife  is  sick." 

Mr.  Thaddeus  Stevens.  Mr.  Beck,  from 
Lancaster  county,  desires  me  to  mention  to  the 
Court  that  he  ought  to  be  excused  ;  he  is  the 
principal  of  a  large  boarding  school,  which  is 
now  full,  and  his  absence  will  break  up  a  whole 
community — it  will  be  a  kind  of  treason,  and  he 
thinks  that  he  ought  to  be  excused.  He  will 
state  his  own  case.  I  know  he  is  principal  of  a 
large  school  at  Litiz,  which  is  now  in  session." 

Judge  Grier.  "I  suppose  the  Mai^shal  did 
not  know  that." 

Mr.  Stevens.  "I  wonder  at  the  Marshal's 
putting  him  on.  Will  the  Court  hear  Mr.  Beck  ?" 

Mr.  David  Paul  Brown.  "  The  Marshal 
did  it  upon  the  principle  that  the  school-master 
should  be  abroad." 

Mr.  Beck.  "  It  is  almost  an  impossibility  for 
me  to  leave  ;  the  institution  is  very  large.  I 
have  a  great  many  pupils  from  different  parts  of 
the  United  States,  and  the  responsibility  of  their 
improvement  altogether  rests  on  me." 

Mr.  Stevens.    "  Is  it  now  in  session  ?"  | 


i  Mr.  Beck.  "Yes  sir,  in  session  at  Litiz,  in 
Lancaster  county." 

Judge  Grier.  "  You  ought  not  to  have  been 
summoned.  That  is  a  public  duty,  affecting 
others  besides  yourself ;  if  it  were  your  private 
business,  we  should  not  excuse  you.' 

Mr.  Brown.  "The  school  cannot  get  along 
without  him." 

Judge  Grier.  "  The  gentleman  is  excused." 
Mr.  James  Cooper.  "Judge  Hammer  of 
Schuylkill  county  is  in  attendance,  but  he  will 
be  glad  if  your  honors  will  allow  him  to  go  home, 
as  his  wife  is  very  ill.  He  does  not  desire  to 
absent  himself  altogether,  but  would  return." 

Judge  Grier.  "If  she  is  dangerously  ill,  it 
would  be  some  reason  for  his  absence,  but  not 
altogether." 

Mr.  Cooper.  "  State  what  is  the  condition 
of  your  wife's  health." 

Mr.  Hammer.  "  My  wife's  health  is  in  a 
very  precarious  situation  ;  I  am  in  hopes  it  may 
get  better  in  about  a  week.' 

J  udge  Grier.  ' '  Will  an  excuse  for  two  weeks 
satisfy  you  ?" 

Mr.  Hammer.    "Yes,  sir." 
Judge  Grier.    "Excuse  him  for  two  weeks." 
Judge  Kane.    "  Samuel  Breck  states  that  he 
is  hard  of  hearing,  and  in  the  eighty-first  year  of 
his  age." 

Judge  Grier.  "That  is  sufficient,  undoubt- 
edly." 

Mr.  Cadwalader.  "He  is  a  man  who  never 
shrank  from  any  public  duty  so  long  as  he  was 
able  to  perform  it.' 

Judge  Grier.    "Mr.  Breck  is  excused." 
Mr.   Stevens.    "  Mr.  Brodhead  desires  to 
state  his  case  to  the  Court." 

Mr.  Brodhead.  "I  would  state  to  the  Court 
that  I  am  subject  to  violent  attacks  of  sick  head- 
ache, as  often  as  once  in'  eight  or  ten  days,  which 
cuts  me  down  for  a  day  or  two.  I  have  also  had 
several  attacks  of  neuralgia  in  the  head,  which 
have  greatly  impaired  my  hearing ;  and  I  should 
labor  under  very  great  disadvantage  in  conse- 
quence of  it.  My  hearing  is  quite  imperfect. 
For  a  long  time  I  have  been  deficient  in  one  ear, 
and  within  a  few  months  the  other  has  also  been 
affected.  I  have  been  sitting  back,  and  I  have 
not  heard  what  has  been  going  on,  except  very 
slightly." 

Judge  Grier.  "  He  will  have  to  be  excused." 
Judge  Kane  reads  a  letter  from  Mr.  Toland 

Judge  Kane.  "He  is  a  neighbor  of  mine — his 
attack  is  of  rheumatic  gout — I  trust,  however, 
he  will  get  well  before  the  completion  of  the 
panel. 

Judge  Grier.  "  I  don't  think  the  fact  that  he 
has  been  admitted  to  the  bar  prevents  him  from 
being  a  juror  on  that  account.  If  he  is  a  member 
of  the  bar  in  full  practice  he  ought  to  be  excused, 
but  I  believe  he  is  not  in  practice.  But,  on 
account  of  his  ill-health,  we  will  excuse  him  for 
two  weeks." 

Mr.  Fraley.    "May  it  please  your  honors..  I 
consider  myself  engaged  in  a  public  employment 
of  such  a  nature  as  to  prevent  my  attendance  as 
a  juror  without  great  detriment  to  the  public 
1  interests.    I  am  obliged  to  perform  official  acts 


TREASON  CASES, 


11 


every  few  minutes  in  the  clay,  and  there  is  no  : 
provision  for  a  substitute  in  my  absence." 

Judge  Grier.  "  We  have  just  refused  to  ex- 
cuse the  president  of  a  bank." 

Mr.  Fraley.    "His  employment  is  different ; 
from  mine.    I  am  president  of  the  Schuylkill 
Navigation  Company.  I  have  a  large  body  of  men 
under  my  control,  and  am  obliged  to  give  answers  j 
upon  the  executive  business  of  the  company,  j 
■flinch  no  one  else  but  me  can  give,  in  the  course 
of  the  day.  There  are  hardly  five  minutes  in  the 
day  but  what  I  am  called  upon  to  perform  some 
duty  that  cannot  be  performed  by  any  one  else." 

Judge  Grier.  '-'Will  not  your  canal  be  frozen 
up  in  a  few  days." 

Mr.  Fraley.  "I  hope  not,  sir;  we  do  not 
intend  to  allow  it  to  freeze,  if  we  can  help  it.  I 
have  other  public  employments  of  which  Judge 
Kane  is  perfectly  aware,  that  require  my  attend- 
ance/'' 

Judge   Kane.    "I  think  if  the  Schuylkill 
navigation  were  completely  frozen  up,  we  might  j 
have  the  services  of  Mr.  Fraley.53 

Excused  for  two  weeks. 

Mr.  Penrose.  "James  McConkey  asks  the 
Court  to  excuse  him  on  two  grounds.  First,  he  is  I 
hard  of  hearing  ;  and  next,  he  is  a  deputy-post- 
master, and  required  to  be  in  attendance  to  dis- 
charge the  duties  of  his  office.  I  know  the  fact 
of  his  being  hard  of  hearing." 

Judge  Grier.  "We  will  have  to  excuse  him." 

Judge  Kaxe.  "  Here  is  an  application  from 
Mr.  John  Darby,  who  sends  a  physician's  certifi- 
cate that  he  has  been  feeble  for  a  number  of  years 
past,  and  is  somewhat  hard  of  hearing ;  and  in 
consequence  of  this  he  has  been  excused  from 
serving  on  juries  in  Franklin  county.  Signed  by 
two  physicians.  George  Chambers  certifies  that 
from  infirm  health  and  difficulty  of  hearing,  he  is 
disqualified  from  serving  as  a  juror." 

Excused. 

Me.  Penrose.    "'I  am  also  instructed  to  say; 
that  Joseph  Culbertson  is  in  infirm  health,  and 
subject  to  vertigo.    He  is  seized  without  a  mo- 
ment's notice,  and  is  not  in  attendance  to-day." 

Judge  Kane.  "His  letter  says  he  requests  to 
be  excused  for  the  following  reasons  :  First,  I 
am  and  have  been  subject  to  vertigo,  which  is 
very  severe,  and  my  hearing  is  very  much  im- 
paired, which  is  not  uncommon  in  a  man  of  my 
age,  being  73  years  old.  I  beg  to  be  excused. 
In  order  that  no  inconvenience  may  be  suffered 
on  account  of  my  declining,  I  suggest  James  J. 
Kenneday,  Esq.,  of  Chambersburg,  to  serve  in 
my  place — as  being  better  qualified  than  I  am." 

Judge  Grier.  "Excused  for  age,  hardness  of 
hearing,  and  vertigo." 

Mr.  D.  P.  Brown.  "I  am  sorry  to  be  called 
upon  to  add  to  the  number  of  deaf  men,  or  those 
getting  deaf.  I  think  they  are  all  getting  deaf,  j 
but  I  thank  Heaven  they  are  not  dumb.  It  is 
the  case  of  Mr.  Caleb  X.  Taylor,  of  Bucks  county, 
who  is  much  afflicted  with  deafness — not  of  a 
temporary  character — but  it  has  been  of  long 
continuance  with  him.  Some  grow  deaf  about 
this  time,  but  it  is  not  so  with  him.  I  suppose 
that  on  the  principle  which  you  have  adopted, 
you  will  excuse  him.    He  is  present." 


Mr.  Taylor.  "I  am  hard  of  hearing  at  the 
best  of  times,  and  at  present  I  labor  under  a  very 
severe  cold  in  the  head,  and  it  affects  my  hearing ; 
and  I  should  be  unwilling  to  sit  upon  a  case  of 
so  great  importance,  unless  I  could  hear  all  the 
evidence  presented." 

Judge  Grier.  "Your  disease  has  become  epi- 
demic to-day.    Mark  him  excused." 

Judge  Kane.  "  Joseph  D.  Brown. — Dr.  Par- 
rish  certifies  that  from  his  knowledge  of  Mr. 
Brown's  health,  having  been  his  physician  for  a 
number  of  years,  he  considers  him  unfit  for  the 
arduous  duties  of  a  trial  of  this  kind.  His  deaf- 
ness and  defective  memory  would  of  themselves 
make  him  inadequate.  This  gentleman  waited 
upon  me,  and  his  whole  appearance  confirms  this 
statement." 

Excused. 

Judge  Kane.  "  Judge  Bell,  of  Berks  county, 
and  Judge  Leiper,  of  Delaware  county,  are  both 
of  them  actually  holding  a  court,  and  closing  up  the 
business  before  leaving  the  bench,  and  ask  to  be 
excused  for  this  week." 

Judge  Gejer.  "  Mark  them  excused  for  one 
week." 

Judge  Kane.  "  Here  are  two  letters  relating 
to  Yalentine  Hummel.  He  is  now  confined  by  a 
serious  attack  of  disease,  and  will  probably  be  so 
for  some  time.    Signed  by  his  physician." 

Judge  Grier.  "Excused for  sickness  for  two 
weeks." 

Judge  Kane.  "An  application  was  made  on 
Friday  or  Saturday  by  Mr.  Brewster,  represent- 
ing General  Cameron,  who  had  remained  here  for 
several  days,  intending  to  be  on  the  jury,  but 
finding  himself  very  unwell,  he  was  obliged  to  go 
home.  If  he  were  excused  for  a  few  days,  I 
presume  he  would  be  able  to  attend."3 

Judge  Grier.  "  He  will  be  excused  for  one 
week,  unless  his  sickness  should  continue; — he 
must  then  get  a  new  excuse." 

Judge  Kane.  "Charles  Saylor,  of  Saylors- 
burg,  Pennsylvania,  announces  that  he  cannot 
attend,  being  the  postmaster,  and  also  other 
matters." 

Judge  Grier.  "United  States'  officers,  who 
have  daily  duties  to  j^erform,  ought  not  to  have 
been  summoned.  They  are  always  excused  on 
State  juries.    Excuse  him." 

Judge  Kane.  "Mr.  Caleb  Cope  addresses  a 
letter  to  the  Court,  in  which  he  says,  that  he  has 
thought  it  proper  to  submit  to  tho  Court  a  certi- 
ficate from  his  family  physician  of  his  ill-health, 
and  accordingly  encloses  it.  He  feels  reluctant 
to  seem  to  shun  a  public  duty,  but  a  long  period 
of  bodily  infirmity  has  obliged  him  to  resign  from 
any  public  duties  in  which  he  was  engaged.  He 
has  not  been  on  a  jury  since  Judge  Duncan's 
time.  His  family  physician,  Dr.  Gerhard,  certi- 
fies that  he  has  from  time  to  time  consulted  me 
in  reference  to  his  health,  and  from  my  know- 
ledge of  the  tendency  of  his  disease,  when  he  is 
confined  in  a  close  room,  I  should  think  the 
services  of  a  juror  would  be  injurious  to  him." 

Judge  Grier.  "The  case  will  have  to  be 
passed  for  the  present — he  cannot  be  excused  on 
that  certificate.  The  gentleman  is  not  over  sixty 
years  of  age." 


12 


TREASON  CASES. 


Mr.  Cadwalader.  "  I  wish  to  present  to  the 
Court  the  case  of  Mr.  Lawrence  Lewis.  He  sup- 
posed that  his  case  would  be  attended  with  less 
difficulty  than  now  appears.  He  did  not  suppose 
such  a  number  of  applications  would  be  presented. 
He  is  the  president  and  active  executive  officer 
of  one  of  our  Mutual  Insurance  Companies,  and 
is  at  this  season  particularly  engaged.  He,  how- 
ever, does  not  desire,  observing  how  many  have 
been  excused,  to  be  relieved  from  the  perform- 
ance of  a  public  duty,  but  limits  his  application, 
and  asks  to  be  excused  for  the  first  fortnight,  and 
he  will  give  his  attendance  afterwards — if  the 
Court  will  indulge  him  now." 

Judge  Kane.  "  Would  it  not  be  more  conve- 
nient for  Mr.  Lewis  to  be  excused  at  the  end 
of  a  fortnight  than  now." 

Mr.  Lewis.  "No,  sir;  there  are  peculiar 
reasons  why  I  should  be  excused  now.  It  is 
on  account  of  official  duties  that  I  ask  it,  not 
private." 

Judge  Grier.  (To  the  Marshal.)  "How many 
are  excused?" 

Marshal.  "Nineteen; — some  permanently, 
and  some  for  two  weeks.  We  have  summoned 
one  hundred  and  sixteen,  and  eighty-one  have 
answered  to  their  names  this  morning.  A  large 
number  will  be  in  attendance  this  afternoon  or 
to-morrow  morning." 

Judge  Grier.  "  There  will  be  a  panel  of  sixty, 
at  least,  drawn  to-day  or  to-morrow,  so  that  we 
may  be  able  to  obtain  a  jury — and  if  we  have  a 
panel  of  sixty  or  seventy  to  draw  from  to-morrow, 
we  shall  be  able  to  excuse  some  till  this  day  two 
weeks.  We  are  very  desirous  of  accommodating 
those  gentlemen  who  will  do  us  the  favor  of 
attending  as  jurors.  The  gentleman  (Mr.  Law- 
rence Lewis)  will  give  his  attendance  this  day 
two  weeks." 

Give  those  who  have  not  answered  to  their 
names  till  to-morrow. 

Defaulting  jurors  called. 

Mr.  Cooper.  "  Robert  Smith,  a  juror  called, 
who  does  not  answer,  wished  me  to  say,  that  it 
will  not  be  possible  for  him  to  arrive  in  town, 
before  to-morrow  morning." 

Judge  Grier.  "If  he  comes  then,  it  will  be 
sufficient. 

Mr.  District  Attoeney  Ashmead.  "  Now 
that  the  panel  of  jurors  has  been  called  over, 
and  we  are  able  to  tell  pretty  nearly  which  of 
them  are  in  attendance,  I  propose  to-morrow 
morning,  to  arraign  one  of  the  defendants,  and 
to  proceed  then  with  the  trial  of  these  cases,  be- 
ginning, as  at  present  advised,  with  Castner  Hana- 
way,  so  that  on  the  part  of  the  government,  we 
shall  be  .ready  to  go  on  with  these  cases  to-mor- 
row morning.'1 

Judge  Grier.  "  Have  the  defendants  been 
arraigned,  and  plead?" 

Mr.  Ashmead.  "  I  desire  it,  however,  to  be 
understood  in  making  this  statement,  that  while 
it  is  my  present  impression  to  proceed,  I  am  not 
to  be  precluded  from  the  right,  possibly,  to  move 
to  quash  this  array.  I  mean  to  say,  that  there 
may  be  some  preliminary  matters  I  may  bring 
before  the  Court  in  the  morning,  if  not,  Ave  will 
proceed." 


Judge  Grier.  "Have  any  of  the  defendants 
been  arraigned  for  trial  ?" 

Mr.  Ashmead.  "  I  propose  arraigning  each 
defendant  as  he  is  called  upon  for  trial. 

Judge  Grier.  "  Adopt  your  own  course.  In 
a  case  of  this  importance,  I  do  not  feel  disposed 
to  hurry  or  drive  either  party — though  I  must 
confess  my  extreme  desire  to  be  in  Washington 
this  day  two  weeks,  and  I  hope  to  have  at  least 
one  case  disposed  of  before  then." 

Mr.  Stevens.  "  I  hope  it  will  not  take  that 
time  to  get  through  with  one  case — in  our 
country,  we  hang  a  man  in  three  days,  and  I 
hope  these  gentlemen  will  not  take  so  long  a 
time." 

Mr.  Brent.    "  This  is  a  civilized  country." 

Judge  Grier.  "  Have  you  any  proposition  as 
to  the  hour?" 

Mr.  Ashmead.  "I  would  suggest  to  the 
Court,  now  that  the  reporters  have  been  em- 
ployed, and  will  take  down  the  testimony  in 
short  hand,  and  will  be  sworn,  so  that  it  will 
save  us  the  time  in  taking  minutes,  and  we  had 
better  begin  by  making  the  time  at  the  usual 
hours  from  ten  to  three,  and  we  can  ascertain 
what  progress  we  make  in  the  case,  and  if  we  find 
it  necessary  to  change  it,  I  will  cheerfully  sub- 
mit" 

Judge  Grier.  "I  was  thinking  of  having  an 
evening  session.  It  will  be  as  hard  on  me  as  cn 
the  counsel." 

Mr.  J.  M.  Read.  "If  the  stenographic  or 
phonographic  reporters  are  employed,  it  is  ne- 
cessary to  make  the  sessions  a  little  shorter,  for 
they  have  to  write  it  out,  or  else  it  would  be  of 
no  advantage  to  the  Court  or  ourselves  " 

Judge  Kane.  "  Arrangements  have  been 
made  that  may  perhaps  relieve  us  from  this  em- 
barrassment. We  have  two  reporters  who  will 
alternate,  and  the  understanding  is,  that  we  shall 
have,  at  the  opening  of  the  Court  in  the  morn- 
ing, a  sufficient  number  of  copies  in  print,  with 
broad  margins,  for  the  use  of  counsel  and  the 
Court.  So  that  there  will  be  no  necessity  of 
taking  notes  for  ourselves;  which  will  greatly  ex- 
pedite the  matter.  '' 

Mr.  J.  M.  Read.  "With  all  the  improve- 
ments on  the  subject-I  happened  to  be  in  the 
District  Attorney  case  where  this  plan  was 
adopted,  and  it  facilitated  our  progress  so  long 
as  we  were  in  session,  and  you  are  able  to 
do  double  the  amount  of  labor  in  the  same 
time.  But  then  it  requires  a  certain  space  of 
time  to  make  it  into  English,  and  in  a  very  few 
days  both  these  gentlemen  would  be  worked  out, 
and  they  would  be  of  no  use  at  all.'' 

Judge  Grier.  Is  there  any  motion  or  objec- 
tion to  be  made  in  regard  to  suffering  the  print- 
ers to  take  notes  and  publish  the  testimony  ?  Are 
there  any  suggestions  on  the  subject?  I  have  a 
precedent  in  my  predecessor's  time." 

Mr.  Ashmead.  "  So  far  as  the  government  is 
concerned,  I  have  no  suggestions  to  make  on 
that  subject,  being  perfectly  willing  that  the  tes- 
timony should  be  printed  as  delivered  in  Court, 
so  that  on  that  point,  I  do  not  desire  to  call  the 
attention  of  the  Court,  there  being  no  difficulty 
in  the  way  of  letting  it  go  to  the  public." 


TREASON  CASES. 


13 


Judge  Kane.  The  greatest  difficulty  I  appre- 
hend, if  we  are  to  go  through  this  long  calendar 
of  indictments,  will  be  in  procuring  jurors  as  we 
approach  the  close  of  our  calendar,  if  the  evi- 
dence is  to  be  known  to  the  public." 

Judge  Grier.  "After  that,  we  may  send 
out  as  many  venires  as  we  please,  and  unless 
we  find  those  who  cannot  read  or  hear,  we  will 
find  none  who  have  not  made  up  their  minds. 
But  if  there  is  no  motion  on  either  side,  nothing 
will  be  done  on  the  subject  by  the  Court." 

Mr.  Brown.  "  We  appear  to  have  those  who 
cannot  hear,  already." 

Mr.  Ashmead.  "  As  far  as  the  jurors  are 
concerned,  there  is  no  difficulty  from  the  num- 
ber of  cases  ;  if  they  sit  upon  one  of  these  trials, 
it  will  not  of  necessity  make  them  incompetent 
to  sit  upon  others.  In  Wilson's  case,  jurors 
who  had  convicted  Porter,  afterwards  sat  upon 
Wilson's  case." 

Mr.  Read.  "  Unless  they  had  made  up  their 
minds  in  his  case." 

Judge  Kane.  "In  that  very  case,  the  Court 
entertained  a  motion  to  prevent  publication, 
and  they  did  not  finally  make  an  order,  in  conse- 
quence of  the  gentlemen  of  the  press  in  attend- 
ance consenting,  without  the  action  of  the  Court, 
that  there  should  be  no  publication.  Judge 
Baldwin  expressed  a  reluctance  to  make  such  an 
order,  but  invited  them  to  adopt  a  course  they 
would  have  pursued  in  case  an  order  was  made." 

Mr.  Stevens.  "  If  the  Court  please,  it  strikes 
me  that  it  would  be  impossible  to  prevent  letter- 
writers  from  sending  to  other  cities,  an  account 
of  the  proceedings,  and  publishing  them,  and 
whether  it  would  not  be  better  to  be  understood 
that  the  testimony  taken  by  those  employed  to 
take  it,  should  be  published,  hoping  they  will 
publish  nothing  else  ;  and  it  will  be  a  fairer  re- 
port, for  it  is  impossible  to  prevent  letters  being 
written  to  a  distance,  and  probably  they  would 
not  give  a  proper  state  of  facts,  not  having  an 
opportunity  to  hear  as  well." 

Judge  Grier.  "  I  suppose  we  could  not  pre- 
vent jurors  from  reading  the  newspapers,  but  I 
presume  that  gentlemen  of  the  high  standing  and 
intelligence  that  we  have  here,  will  not  be  affect- 
ed by  them.  If  there  is  no  motion  made,  we 
will  proceed  as  in  other  cases  ;  while  the  press 
may  be  allowed  to  publish  the  testimony  as  they 
choose,  we  hope  they  will  not  undertake  to 
make  any  comments  upon  it.  Are  there  any 
other  preliminary  matters  you  wish  to  bring  be- 
fore the  Court  ?" 

Mr.  Ash.mead.  "There  is  nothing  that  at 
this  moment  I  desire  to  bring  to  the  notice  of  the 
Court.  Yvre  shall  be  ready  to  proceed  to-morrow 
morning." 

Judge  Grier.  "If  you  have  nothing  further 
in  this  case  to  do,  the  Court  will  be  adjourned 
till  10  o'clock  to-morrow  morning  " 

Mr.  Stevens,  "I  do  not  understand  yet 
whether  the  District  Attorney  will  move  to  quash 
the  array.  If  he  will,  we  should  have  a  motion 
to  make,  but  it  would  be  premature  now." 

Mr.  Ashmead.  "  Whatever  motion  I  make 
upon  the  subject,  I  will  make  to-morrow  morn- 
ing before  the  Court.    And  if  I  do  not  move  to 


quash  the  array,  I  will  proceed  to  take  up  the 
Castner  Hanway." 

Mr.  Stevens.  "We  do  this  to  show  that  we 
do  not  wish  to  postpone  any  remark  we  might 
have  to  make  till  to-morrow." 

Judge  Grier.  "The  prisoners  have  not  been 
arraigned,  and  we  do  not  know  who  are  the 
counsel  for  the  defendants.  You  can  make  your 
motion  when  the  prisoners  are  arraigned." 

Adjourned  till  to-morrow,  at  10  A.  M. 

Samuel  B.  Dalrvmple  and  Arthur  Caxnox, 
were  sworn  as  Reporters,  as  follows  : 

"  That  you  will  correctly  and  impartially  note  and 
record  the  evidence,  arguments,  opinions,  and  gene- 
rally all  the  proceedings  which  shall  be  had  in  the 
causes  pending  before  this  Court,  on  Indictments 
for  Treason,  according  to  the  best  of  your  ability." 


Tuesday,  November  25,  1851. 
Court  was  opened  at  10  o'clock. 

PRESENT,  JUDGES  GRIER  AND  KANE. 

[Mr.  James  J.  Robbins  was  sworn  as  follows: 
"  That  the  copies  of  the  evidence  and  other  proceed- 
ings, which  you  shall  cause  to  be  printed  from  the 
notes  of  the  Phonographic  Reporters,  for  the  use  of 
the  Court  and  Counsel  in  the  trials  now  pending  or 
about  to  commence,  shall  be  by  you  carefully  re- 
vised and  made  conformable  to  such  notes."] 

Mr.  B.  Gerhard.  "May  it  please  the  Court, 
there  was  a  juror,  called  and  marked  as  a  de- 
faulter yesterday,  who  really  has  never  been 
served  with  a  summons.  He  has  been  absent 
from  the  city  long  anterior  to  the  period  of  the 
ordering  of  the  venire.  It  is  Mr.  Hugh  Campbell. 
He  has  not  yet  come  home." 

Judge  Grier.  "He  will  have  to  come  when 
he  returns  and  finds  his  notice.  He  will  not  be 
in  any  default,  not  having  received  a  notice.  If 
he  returns  he  will  be  required  to  attend — he  is 
excused  for  the  present.    Call  the  jurors." 

Jurors  called-- 

Judge  Grier.  "  Mark  such  jurors  as  are  yet 
in  default  and  are  not  excused,  in  a  fine  of  one 
hundred  dollars  each." 

"  I  have  a  letter  from  Mr.  Stokes,  a  juror,  who 
has  been  absent  but  was  expected  home  on 
Wednesday.  He  will  be  remitted  until  next 
Wednesday.  After  he  returns  and  finds  his 
notice,  he  will  not  be  excused — he  is  excused 
now  from  his  fine." 

Mr.  Vanzant.  "  When  I  left  home  yesterday 
two  of  my  children  were  very  sick.  I  would  ask 
to  be  excused  for  a  few  days,  till  I  know  more 
about  them.    I  will  attend  in  a  few  days." 

Judge  Grier.  "You  are  excused  till  Monday 
next.  Is  the  Attorney  for  the  United  States 
prepared  to  proceed? 

Mr.  Ashjiead.  "  In  one  moment,  may  it 
please  your  honor.  I  want  first  to  ascertain 
whether  our  witnesses  are  all  in  attendance — so 
that  if  some  are  absent,  I  may  now  in  the  begin- 
ning of  this  case  move  for  attachments — since  I 
am  told  some  are  in  the  room,  and  some  in  other 
parts  of  the  building  provided  for  them." 

Judge  Grier.  "  The  crier  will  call  the  wit- 
nesses." 

Witnesses  called. 


14 


TREASON  CASES. 


Mk.  Ashmead.  "  I  move  now  for  the  arraign- 
ment of  the  defendant  Castner  Hanway." 

Mr.  J.  M.  Read.  "  Will  your  honors  allow 
me  to  make  a  suggestion  before  this  arraignment 
takes  place,  which  we  think  it  our  duty  to  make, 
that  whatever  is  done  may  not  be  drawn  into  a 
precedent ;  and  yet  I  do  not  mean  to  move  to 
quash  the  array.  Your  honors  will  see  by  the 
panel  that  there  are  116  jurors  returned — the 
order  of  the  Court,  I  think  was  that  there  should 
not  be  less  than  108 — but  it  makes  no  difference 
whether  it  was  108  or  116,  and  it  is  not  upon 
that  ground  at  all  that  we  object — we  think  it 
proper  to  lay  before  the  Court  our  reasons  for 
thinking  this  course  unusual,  and  as  we  believe 
contrary  to  the  law  of  this  Circuit. 

Your  honors  will  recollect,  and  I  merely  call 
your  attention  to  it  —  that  we  are  now  stand- 
ing, in  the  State  of  Pennsylvania,  upon  the 
same  law  exactly  as  when  the  insurgents  were 
tried  in  1795,  that  is  upon  the  Act  of  1789 
and  1800,  and  the  usage  that  may  have  ex- 
isted in  the  District  under  it.  It  is  the  ef- 
fect of  the  Act  of  1819,  which  has  taken  the 
State  of  Pennsylvania  out  of  the  general  rules 
in  regard  to  jurors,  and  turned  us  back  upon 
what  was  the  law  of  Pennsylvania  in  1789,  and 
Which  is  now  the  law  of  the  present  Circuit 
Court  sitting  for  the  Eastern  District  of  Penn- 
sylvania. The  State  law  that  was  in  force  in 
1789  and  in  1800,  is  the  Statute  of  1785,  which 
was  brought  before  the  Court  by  Mr.  Lewis,  in 
the  case  of  the  United  States  insurgents,  in  2 
Dallas.  The  point  there  stated  was  that  the 
jurors  summoned  were  one  hundred  and  eight, 
the  answer  to  it  was  that  there  were  four  differ- 
ent counties  then  engaged  and  in  a  state  of 
insurrection  —  as  I  suppose,  though  I  carinot 
gather  exactly  from  the  face  of  the  report  itself 
— and  I  believe  the  indictments  have  not  been 
published.  I  suppose  there  were  indictments  in 
each  distinct  county,  and  that  the  Marshal  using 
his  own  discretion  perhaps  —  summoned  sixty 
jurors  in  the  first  place  for  a  general  panel,  and 
twelve  out  of  each  county,  making  one  hundred 
and  eight,  but  that  no  panel  consisted  of  more 
than  seventy-two — that  is,  that  no  venire  to  try 
any  single  individual  case  consisted  in  number 
of  more  than  seventy-two.  It  was  not  one  hun- 
dred and  eight  that  the  Court  sanctioned — but 
all  that  they  sanctioned  was  seventy-two.  I  beg 
to  turn  now  to  the  Act  of  1785 — and  we  shall 
have  a  little  additional  authority  by  showing  the 
construction  which  one  of  the  highest  judicial 
officers  of  the  United  States  placed  upon  a  simi- 
lar Act  of  Assembly  in  another  State.  We  should 
not  have  troubled  the  Court  with  this,  further 
than  stating  the  objection,  but  as  there  is  an  in- 
tervening authority  with  which  I  shall  trouble  the 
Court,  we  thought  it  proper  to  state  it  in  this 
way ;  we  think  this  should  not  be  made  a  prece- 
dent in  future.  The  Act  of  17  March,  1785, 
in  2  Dallas's  State  Laws,  262,  after  giving 
the  oath  of  the  sheriff,  which  is  a  very  pe- 
culiar though  a  very  proper  one  as  to  the 
summoning  of  jurors,  "that  he  should  not  sum- 
mon as  a  juror,  any  man  who  in  his  judgment, 
will  be  influenced  in  determining  any  matters 


which  shall  come  before  him,  as  a  juror,  by 
hatred,  malice,  or  ill  will,  fear,  favor,  or  affec- 
tion, or  by  any  partiality  whatever." 

The  law,  therefore,  of  the  State  of  Pennsyl- 
vania was  that  no  order  of  Court  could  make  a 
larger  jury  than  eighty,  and  the  question  sub- 
mitted at  that  time  in  the  case  of  the  Insurgents 
was,  whether  that  was  binding  upon  the  Courts 
of  the  United  States.  That,  may  it  please  your 
honors,  arose  under  the  Judicial  Act  of  1789, 
which  then,  only  was  in  force — the  Act  of  1800 
had  not  been  passed,  and  which  though  it  is 
now  passed  does  not  at  all  alter  the  relations  ex- 
isting in  the  State  of  Pennsylvania.  The  con- 
struction contended  for  by  Mr.  Bradford,  then 
was,  that  whether  that  law  was  in  force  or  not, 
as  to  the  number — that  in  that  identical  case 
they  had  not  exceeded  the  number — because  they 
had  not  over  eighty.  The  Marshal  had  exer- 
cised his  own  discretion,  and  the  question  was, 
whether  he  had  gone  beyond  what  the  Court 
thought  it  proper  to  exercise.  Judge  Patterson 
in  deciding  this  question,  did  as  far  as  language 
could  go,  decide  a  general  question,  and  that 
general  question  was  that  the  Act  of  1789  did 
not  apply  according  to  his  idea  of  it,  to  the 
numbers  of  the  jury,  but  simply  to  the  designa- 
tion and  qualifications  and  other  matters  not 
involved  in  the  question  of  numbers.  The  effect 
of  that  doctrine  is  to  throw  us  back  upon  some 
other  mode  of  proceeding  unknown  to  the  law  of 
Pennsylvania — it  is  to  throw  us  back  upon  the 
Common  Law  as  practised  in  England,  and  to 
take  that  in  preference  to  the  law  of  Pennsyl- 
vania. The  effect  of  the  Common  Law  practice 
is  one  that  I  suppose  your  honors  never  would 
like  to  enforce  in  capital  cases  in  Pennsylvania 
— that  is  to  do  as  they  did  on  Horn  Tooke's  trial 
— to  have  a  jury  of  two  hundred  and  twenty- 
eight — or  as  in  one  of  the  trials  in  Ireland — 
where  they  had  eight  hundred  jurors  for  the 
purpose  of  allowing  a  defendant  the  privilege  of 
challenging  twenty-five  or  thirty.  The  effect  of 
throwing  aside  the  State  Law,  may  it  please 
your  honors,  is  to  throw  you  back  upon  the 
Common  Law,  where  it  is  entirely  in  the  discre- 
tion of  the  Court  what  number  they  will  summon 
and  bring  into  Court.  The  effect  of  that  decision 
was  to  place  the  Circuit  Court  of  Pennsylvania 
in  the  condition  of  a  Court  of  King's  Bench  or 
Commission  of  Oyer  and  Terminer  in  England, 
and  enable  them  to  abuse  their  power  and  do 
what  a  Court  like  the  one  which  I  now  have  the 
honor  to  address,  certainly  would  not  do — enable 
them  to  summon  fifteen  hundred  men,  out  of  which 
the  challenge  of  thirty-five  would  be  useless. 

I  beg  leave  to  say  another  thing  on  this  subject 
before  referring  to  a  distinct  authority.  As  has 
been  contended,  and  as  will  be  contended  here, 
and  as  it  is  but  fair  and  right  for  me  to  say  was 
adjudged  by  Judge  Baldwin,  in  the  United  States 
against  Wilson  and  Porter,  and  by  the  Supreme 
Court  of  Pennsylvania,  the  Attorney-General,  or 
his  representative,  representing  the  United  States, 
has  a  right,  not  to  challenge  peremptorily,  (that 
is  taken  away  by  the  Statutes  of  Edward  I.,)  but 
he  can  challenge  for  cause,  and  he  need  not  show 
his  cause  till  the  panel  is  exhausted.    But,  sup- 


TREASON  CASES, 


15 


pose  that  to  be  the  law  in  this  case,  and  the  pre- 
cedent in  Baldwin's  Reports  to  be  followed,  if 
your  honors  had  chosen,  or  if  the  marshal  had 
chosen  and  your  honors  had  confirmed  it,  to  sum- 
mon three  hundred  jurors  here  from  the  different 
parts  of  this  district,  and  had  added  twelve,  mak- 
ing three  hundred  and  twelve,  our  challenge  of 
thirty-five  would  be  as  useless  as  if  it  did  not  ex- 
ist. The  effect  of  it  would  be  that  the  Attorney- 
General  could  go  on  and  challenge  each  one, 
without  showing  his  cause  till  the  panel  was  ex- 
hausted, and  the  jury  would  be  a  jury  of  his  own 
selection ;  and  I  call  on  your  honors,  if  we  sub- 
mit in  this  case,  not  to  have  this  drawn  into  a 
precedent,  but  that  it  may  stand  as  a  case  pass- 
ing not  sub  silentio,  but  where  the  advantage  was 
not  taken  by  the  parties  interested  in  taking  it. 
Upon  that  subject  I  beg  leave  also  to  read  from  a 
work  on  the  State  Trials  in  Ireland,  merely  a 
passage  or  two  as  illustrative  of  what  I  would 
say,  though  probably  not  in  the  same  language. 
(Reads.) 

I  merely  cite  this  to  show  that  according  to  the 
English  rule  if  adopted  here,  and  if  adopted  here 
I  see  no  limit  to  it,  the  court  might  order  so  large 
a  number  as  in  itself  virtually  to  destroy  the 
prisoner's  privilege  of  challenging 

Having  thus  explained  our  reasons,  and  know- 
ing that  in  this  case  your  honors  have  done  every-  ] 
thing  with  the  intention  of  securing  a  fair  and 
impartial  trial  for  the  defendants,  I  beg  leave  to 
refer  your  honors  to  Burr's  trial,  in  Virginia. 
The  question  there  directly  made  was,  as  to  the 
Grand  Jury ;  I  do  not  advert  to  the  number  of 
the  Petit  Jury,  which  as  I  understand,  I  did  not 
look  at  that  particular  part,  was  passed  without 
argument.  The  order  was  for  forty-eight,  of 
which  I  think  twelve  were  to  come  out  of  the 
county  of  Wood,  where  the  overt  act  was  laid. 

Your  honors  will  recollect  that  in  this  trial 
CoL  Burr  appearing  there  under  certain  charges, 
was  there  at  the  time  the  Grand  Jury  was  sum- 
moned into  Court,  and  that  he  challenged  the 
array.  On  page  31  of  the  first  volume,  on  the 
22d  of  May,  1807,  Mr.  Burr  addressed  the  Court 
to  the  following  effect. 

"Before  any  further  proceeding  with  regard  to 
swearing  the  jury,  I  beg  leave  to  remark  some 
irregularity  that  has  taken  place  in  summoning 
part  of  the  panel.  This  is  the  proper  time  to 
make  the  exception.  I  understand  that  the  mar- 
shal acts  not  under  an  act  of  Congress,  but  a  law 
of  the  State  of  Virginia,  by  which  he  is  required 
to  summon  twenty-four  freeholders  of  the  State, 
to  compose  the  Grand  Jury.  When  he  has  sum- 
moned that  number,  his  function  is  completed. 
He  cannot  on  any  account,  summon  a  twenty- 
fifth.  If,  therefore,  it  can  be  made  to  appear, 
that  the  marshal  has  struck  off  any  part  of  the 
original  panel,  and  substituted  other  persons  in 
their  stead,  the  summons  is  illegal.  Such  is  the 
law  and  the  dictate  of  true  policy  ;  for  in  impor- 
tant cases,  like  the  present,  a  different  course 
would  produce  the  most  injurious  consequences. 
I  consider  it  proper  to  ask  the  marshal  and  his 
deputies,  what  persons  they  have  summoned, 
and  at  what  periods  :  whence  it  may  be  known, 
whether  some  have  not  been  substituted  in  place 


of  others  struck  off  the  panel.  When  we  have 
settled  this  objection,  I  shall  proceed  to  excep- 
tions of  a  different  nature."  (1  Burr's  Trial, 
pp.  31,  32.) 

It  turned  out  that  the  Marshal  summoned 
twenty-four ;  two  excused  themselves  and  he 
substituted  two  names  in  their  place,  men  of  ex- 
cellent character,  one  of  whom  I  think  was  af- 
terwards put  in.  Mr.  Wickham  says,  "Before 
we  go  into  this  inquiry,  we  declare,  that  we 
mean  no  personal  imputation  upon  the  respecta- 
ble gentleman  who  is  the  marshal.  His  inten- 
tions were  certainly  pure.  It  is  an  error  of 
judgment  alone,  to  which  we  object.  But  in  the 
present  case,  where  such  important  interests  are 
at  stake,  and  where  such  unjustifiable  means 
have  ..been  used  to  prejudice  the  public  mind 
against  Colonel  Burr,  it  is  his  right,  to  take 
every  advantage  the  law  gives  him.  We  are 
prepared  to  show,  that  when  a  person  is  bound 
.in  a  recognisance,  he  has  a  right,  at  this  period 
of  the  business,  to  come  before  the  Court  with 
his  exceptions  to  the  grand  jury  ;  and  if  in  any 
other  case,  why  not  in  one  of  such  deep  import- 
ance as  the  present  ?  In  support  of  this  position, 
Mr.  Wickham  cited,  2  Hawkin's  Pleas  of  the 
Crown,  p.  307,  sect.  16,  and  3  Bacon's  Abridge- 
ment, p.  725.  Whether  we  might  afterwards  file 
|  a  plea  in  abatement  for  the  error  committed,  is 
not  now  to  be  discussed.  It  is  Colonel  Burr's 
anxious  desire,  that  this  whole  affair  should  ter- 
minate here,  and  that  this  grand  jury  may  de- 
termine his  case." — (1  Burr's  Trial,  pp.  33,  34.) 

The  Chief  Justice,  (on  page  34,)  called  for  the 
law  of  Virginia. 

By  turning  to  the  Revised  Code  you  will  find 
that  the  question  of  number  was  the  important 
one,  according  to  our  view  of  the  case.  At  page 
f  100  of  the  first  volume  of  the  Revised  Code,  Act 
of  29th  Nov.,  1792. 

"  The  sheriff  of  each  county,  and  the  sergeants 
of  the  cities  of  Williamsburg.  Richmond  and  borough 
of  Norfolk,  and  other  corporations  within  this  com- 
monwealth, shall,  before  every  quarter  session  of 
the  county  or  corporation  courts,  respectfully,  sum- 
mon twenty-four  freeholders  of  his  county  or  corpo- 
ration, not  being  ordinary  keepers,  constables,  sur- 
veyors of  highways,  or  owners  or  occupiers  of  a 
mill,  out  of  which  number  shall  be  empanelled  a 
grand  jury  of  sixteen  at  the  least."  By  a  subsequent 
law:  "If  a  smaller  number  than  16  attend,  the  de- 
ficiency to  be  supplied  from  bystanders," 

Your  honors  will  perceive  that  the  question 
there  was  upon  the  Grand  Jury — which  is  the 
same  question  as  the  Petit  Jury — because  the 
decision  in  2d  Dallas,  is  upon  the  question  of 
numbers,  to  be  sure  with  regard  to  the  Petit 
Jury :  but  it  makes  no  difference,  but  would  af- 
fect the  Grand  Jury,  and  would  throw  us  back 
upon  the  common  law,  but  what  I  mean  to  say, 
is,  that  the  Chief  Justice  of  the  United  States, 
sitting  in  the  District  of  Virginia,  in  his-  opinion, 
took  that  to 'be  the  law  of  the  case.  The  Chief 
Justice  inquired,  whether  the  question  had  ever 
come  before  the  State  Courts,  and  being  answered 
in  the  negative,  adds  : 

As  this  question  has  never  been  decided  before 
the  State  Courts,  we  must  refer,  to  the  words  of 
the  Act  of  Assembly.    There  can  be  no  doubt 


16  TREASON  CASES. 


that  this  is  the  time  when  the  accused  has  a  i 
right  to  take  exceptions  to  the  jury ;  and  the 
only  doubt  can  be,  is  this  a  proper  exception  ?  ' 
The  marshal  is  authorized  by  law,  to  summon 
twenty-four  jurymen;  but  he  is  not  to  summon 
a  twenty-fifth.  Of  course,  the  twenty-fifth  is  not 
legally  summoned,  unless  he  has  the  power  to 
discharge  a  person  already  summoned.  He  has 
no  such  power,  unless  the  jury  be  composed  of 
bystanders.  The  twenty-four  first  summoned, 
must  compose  the  jury,  sixteen  of  whom  consti- 
tute a  quorum.  It  follows,  therefore,  that  no 
one  can  be  on  the  grand  jury,  unless  he  be  one 
of  the  twenty-four  first  summoned,  or  one  who 
has  been  selected  from  the  bystanders  by  the 
direction  of  the  Court.  When  the  panel  has  been 
once  completed  by  the  marshal,  its  deficiencies 
can  be  supplied  only  from  the  bystanders. 

The  Chief  Justice  further  observed,  that  he  was 
not  well  acquainted  with  the  practice  in  the  State 
Courts ;  but  he  believed  the  practice  of  sheriffs 
to  be,  to  excuse  a  man  summoned  on  the  jury,  if 
they  are  satisfied  that  his  excuse  is  reasonable. 
So  it  may  have  been  with  the  officer  of  this 
Court,  who  acted,  he  had  no  doubt,  with  the 
most  scrupulous  regard  to  what  he  believed  to 
be  the  law.  That  the  Court,  however,  thought 
the  marshal  had  no  such  dispensing  power.  One 
very  obvious  reason  against  the  marshal's  pos- 
sessing this  power  of  substitution,  is,  that  if  a 
j)erson  summoned,  should  come  into  Court,  and 
prove  that  he  had  been  actually  summoned,  he 
certainly  would  be  on  the  grand  jury,  if  one  of 
the  twenty-four  first  summoned.  The  general 
principle  is,  that  when  a  person  is  put  on  the 
panel,  he  stands  upon  it,  and  cannot  be  displaced 
by  the  marshal.  There  is  an  evident  distinction 
between  actually  summoning  a  grand  juryman, 
and  merely  talking  to  a  person  about  summon- 
ing him.  The  Court  is  therefore  of  opinion,  that 
a  person  substituted  in  the  place  of  one  actually 
summoned,'  cannot  be  considered  as  being  on  the 
panel.] — (1  Butj-'s  Trial,  p.  37.) 

May  it  please  your  honors,  I  may  be  all  wrong 
about  it,  but  this  appears  to  me  to  be  a  direct 
authority,  as  far  as  it  can  be,  to  show  that  the 
ruling  of  Judge  Patterson,  on  the  subject  of 
numbers,  which  was  not  essential  in  the  case  of 
the  United  States  and  the  insurgents,  was  not  the 
ruling  adopted  by  the  Chief  Justice  in  Virginia. 
Our  objection,  if  we  had  chosen  to  move  to 
quash  the  array,  would  have  been,  that  the  order 
of  the  Court  to  summon  one  hundred  and  eight 
jurors,  was  not  according  to  the  law  of  Pennsyl- 
vania, and  that  the  law  of  Pennsylvania,  was,  by 
the  Act  of  Congress,  made  the  law  of  this  Court. 

It  is  suggested  to  me  by  my  colleague,  that  our 
understanding  of  the  ruling  of  Judge  Patterson, 
is,  finally,  that  the  officer  having  complied  with 
the  law  of  the  State  substantially,  there  was  not 
a  non-compliance  as  here,  that  the  decision  is 
not  necessarily  to  be  carried  beyond  the  point 
actually  decided.  We  have  thought  proper  upon 
full  reflection  and  consultation,  for  it  has  not 
been  without  looking  at  the  subject  attentively, 
to  submit  this  to  the  Court,  and  to  say  that  it  is 
not  our  wish  to  take  any  advantage  in  this  par- 
ticular case. 


Mr.  Ashmead. — No  motion  has  been  sub- 
mitted to  the  Court,  and  so  far  as  this  discussion 
has  been  presented,  it  seems  to  me  irregular. 
The  motion  made  on  the  part  of  the  Government 
was  that  the  defendant  should  be  arraigned,  and 
it  should  have  gone  on  without  reference  to  the 
question  whether  the  jury  was  regularly  re- 
turned or  whether  the  Marshal  had  exceeded 
his  authority,  or  disobeyed  entirely  the  com- 
mands of  the  Court. 

If  this  motion  is  made  with  any  impression  on 
the  other  side  that  we  have  any  particular  parti- 
ality for  this  jury,  I  wish  to  say  that  if  they 
desire  to  quash  the  array,  we  will  cordially 
agree  to  it.  The  venire,  it  is  true,  does  not 
exactly  conform  to  the  order  of  Court.  I  sug- 
gested to  the  Court  that  the  venire  should  issue 
for  108  jurors,  twelve  of  them  to  be  from  Lan- 
caster County.  The  venire  issued  by  the  Court 
instructed  the  Marshal  to  summon  not  less  than 
108,  and  he  has  returned  116  jurors,  and  as  far 
as  he  is  concerned,  what  he  did  is  in  strict  con- 
formity with  the  directions  of  the  venire.  He 
might  have  increased  the  number  by  making  it 
ten  or  twenty  more,  according  to  his  own  dis- 
cretion. So  as  to  the  number  returned  from  the 
County  of  Lancaster, — the  venire  directed  him 
to  summon  not  less  than  twelve,  and  he  has 
summoned  sixteen.  Allusion  has  been  made  to 
these  questions ;  and  as  the  counsel  on  the  other 
side  has  been  heard  upon  them,  I  desire  to  make 
a  few  remarks  to  show  that  in  respect  to  all  the 
matters  to  which  reference  has  been  made,  the 
law  is  perfectly  clear,  and  there  can  be  no  sort 
of  difficulty  concerning  it.  It  is  said,  this  is  a 
bad  precedent,  and  the  case  of  Burr  is  referred 
to,  where  there  were  but  one  or  two  defendants, 
a  person  named  Smith,  and  Mr.  Blannerhasset ; 
and  in  that  case  there  were  48  jurors  returned. 
But  there  is  a  marked  difference  between  a  case 
where  these  are  but  three  defendants,  and  where 
there  are  some  40  prisoners  to  be  tried.  There 
is  surely  a  propriety  under  such  circumstances, 
in  returning  a  much  larger  panel  of  jurors. 

The  mode  of  selecting  jurors  has  been  adverted 
to,  and  the  case  in  2d  Pallas  has  been  referred 
to,  to  show  that  the  number  returned  is  too  large. 
It  seems  to  me  clear  that  it  is  in  the  powTer  of 
the  Court  to  order  any  number  of  jurors  the}r 
think  proper,  and  there  is  nothing  in  the  law  of 
the  State  of  Pennsylvania  limiting  the  number, 
which  can  apply  to  the  law  of  the  United  States. 
I  shall  show  first  the  section  of  the  Act  of  Con- 
gress in  regard  to  returning  jurors. 

It  is  the  Act  of  Sep.  24,  1789,  the  29th  section 
of  which  provides  as  follows  : 

"In  cases  punishable  with  death,  the  trial 
shall  be  had  in  the  county  where  the  offence  is 
committed,  or  where  that  cannot  be  done,  with- 
out great  inconvenience,  twelve  petit  jurors  at 
least  shall  be  summoned  from  thence.  And 
jurors  in  all  cases  to  serve  in  the  Courts  of  the 
United  States  shall  be  designated  by  lot,  or 
otherwise,  in  each  state  respectively,  accord- 
ing to  the  mode  of  forming  juries  therein  now 
practised,  so  far  as  the  laws  of  the  same  shall 
render  such  designation  practicable  by  the 
Courts  or  Marshals  of  the  United  States ;  and 


TREASON  CASES 


IT 


the  jurors  shall  have  the  same  qualifications  as  ' 
are  requisite  for  jurors  by  the  lares  of  the  State 
of  which  they  are  citizens,  to  serve  in  the  highest 
Courts  of  law  of  such  State,  and  shall  be  re- 
turned as  there  shall  be  occasion  for  them,  from 
such  parts  of  the  District,  from  time  to  time,  as 
the  Court  shall  direct,  so  as  shall  be  most  favor- 
able to  an  impartial  trial,  and  so  as  not  to  incur 
an  unnecessary  expense,  or  unduly  to  burthen 
the  citizens  of  any  part  of  the  District  with  such 
services." 

The  Court  will  perceive  that  its  -provisions 
have  no  reference  to  the  number  of  jurors  to  be 
returned,  but  simply  to  their  qualifications  and 
mode  of  se'ection.  In  these  respects  it  should 
be  similar  to  the  proceedings  in  the  State  Courts, 
but  in  no  other.  It  leaves  the  number  as  it 
stood  at  common  law,  to  be  designated  by  the  j 
Court  in  the  venire. 

Judge  Gtbjder. — Was  not  that  decision  made  in  j 
the  case  of  the  Western  Insurgents  ?  It  is  re-  ' 
ported  in  full  in  Wharton's  State  Trials. 

-Mr.  AsroiEAD.  As  the  objection  has  been  made  , 
and  it  has  been  stated  that  this  is  not  to  be  drawn  j 
into  a  precedent.  I  do  not  choose  upon  the  part  of  j 
the  government  to  go  on  to  trial  with  an  object- 
ion such  as  this,  made  as  a  preliminary  point,  j 
I  mean  to  shovr  that  the  government  intends  to 
proceed  according  to  law,  and  I  wish  the  other 
side  to  consent  to  nothing  as  matter  of  grace  or 
favor.    If  this  array  in  their  judgment  ought  to 
be  quashed,  we  are  vrilling  to  unite  with  them, 
and  agree  that  it  shall  be  done.    The  act  of  Con- 
gress  declares  that  the  jury  shall  be  drawn  in  the  j 
same  way  and  possess  the  same  qualifications  as 
in  the  State  Courts,  but  it  does  not  limit  the 
number,  nor  are  they  to  be  brought  at  stated 
periods,  but  the  court  can  direct  these  jurors 
to  come  from  time  to  time  as  it  has  occasion  for 
them.    Now  vrhat  is  the  interpretation  of  this 
law?    Judge  Patterson  says  in  the  case  of  the 
TJ.  S.  vs.  The  Insurgents,  (2  Dall.  338.) 

<;  That  the  objections  that  have  been  suggested  ' 
on  this  occasion,  are  principally  founded  on  the 
29th  section  of  the  judicial  act  of  Congress,  which 
refers  the  Federal  Courts  to  the  State  Laws,  for 
certain  regulations  respecting  juries.    But  the 
words  of  this  reference  are  clearly  restricted  to 
the  mode  of  designating  the  jury,  by  lot,  or  other- 
wise :  and  to  the  qualifications  which  are  requi- 
site for  jurors  :  according  to  the  laws  and  prac- 
tice of  the  respective  States.    Since,  therefore, 
the  act  of  Congress  does  not  itself  fix  the  number  I 
of  jurors  :  nor  expressly  adopt  any  State  rule 
for  the  purpose,  it  is  a  necessary  consequence  ; 
that  the  subject  must  depend  on  the  common  | 
law;  and,  by  the  common  lav,  the  Court  may  di- 
rect any  number  of  jurors  to  be  summoned,  on  a 
consideration  of  all  the  circumstances  under 
which  the  venire  is  issued.'"' 

Mr.  Stevens. — Will  the  gentleman  just  read 
the  next  clause  of  that,  it  will  save  me  the  trouble. 

Ms.  Askmead  reads  it,  as  follows — 

■■  Taere  are  instances,  indeed,  where  five  juries 
have  been  summoned  upon  a  trial  for  High  Trea- 
son, in  order  that,  after  the  allowance  of  the 
legal  challenges,  a  competent  number  might  still 
be  ensured.    In  the  ^resent  instance,  the  precept 

'      *  3 


requires  the  Marshal  to  return  at  least  48  jurors  ; 
and  he  has  not,  in  my  opinion,  been  guilty  of  any 
excess,  in  the  exercise  of  that  discretion,  for  re- 
turning a  greater  number,  with  which  he  is 
legally  invested." 

I  do  not  see  that  what  I  have  been  asked 
to  read  interferes  with  my  view  at  all.  In  that 
case  there  was  a  precept  which  directed  the  mar- 
shal to  return  forty-eight  jurors,  instead  of  which 
he  returned  108.  It  only  gives  additional  force 
to  my  view  of  the  law. 

One  other  point  has  been  made  to  which  I  will 
allude.  The  right  of  the  government  not  to  chal- 
lenge peremptorily  in  the  first  instance,  but  to 
set  aside  every  juror  till  the  panel  is  exhausted. 
That  right  does  not  depend  simply  on  Judge 
Baldwin's  opinion,  in  the  case  of  "Wilson  and 
Porter,  but  it  is  settled  by  the  Supreme  Court  of 
the  United  States,  in  TS.  S.  v.  Marchant,  (12 
Wheaton.  480,)  and  I  will  read  a  portion  of  the 
opinion  of  Judge  Story,  which  will  make  that 
plain. 

•'Until  the  statute  of  33  Edw.  I.,  the  crown 
might  challenge  peremptorily  any  juror,  without 
assigning  any  cause:  but  that  statute  took  away 
that  right,  and  narrowed  the  challenges  of  the 
crown  to  those  for  cause  shown.  But  the  prac- 
tice since  this  statute  has  uniformly  been,  and  it 
is  clearly  settled,  not  to  compel  the  crown  to 
show  cause  at  the  time  of  objection  taken,  but 
to  put  aside  the  juror  until  the  whole  panel  is 
gone  through.  Hawkins,  on  this  point  says,  (PI. 
Cr.  b.  2.  ch.  43.  s.  2.  s.  3.)  -'if  the  king  challenge 
a  juror  before  the  panel  is  perused,  it  is  agreed 
that  he  need  not  show  any  cause  of  his  challenge, 
till  the  whole  panel  be  gone  through,  and  it  ap- 
pears there  will  not  be  a  full  jury,  without  the 
person  so  challenged.  And  if  the  defendant,  in 
order  to  oblige  the  king  to  show  cause,  presently 
challenge,  touts  paravcile;  yet  it  hath  been  ad- 
judged, that  the  defendant  shall  be  first  put  to 
show  all  his  causes  of  challenge  before  the  king 
need  to  show  any.'  And  the  learned  author  is 
fully  borne  out  by  the  authorities  which  he  cites, 
and  the  same  rule  has  been  recognized  down  to 
the  present  times.''' 

The  law.  therefore,  is  clearly  settled  by  that  de- 
cision, it  thus  is  the  right  of  the  government 
to  set  aside  all  the  jurors  until  the  panel  is 
exhausted. 

The  object  of  challenging  is  not  to  enable  the 
prisoner  to  select  his  own  jury,  but  is  simply  to 
give  to  him  an  opportunity  to  challenge  any  to 
whom  he  may  have  objection. 

I  have  suggested  these  matters  now.  because 
these  questions  would  have  come  up  hereafter, 
and  probably  to  have  had  this  discussion  now, 
may  save  time  in  the  further  progress  of  the  case. 

Judge  Grier — There  is  no  motion  before  the 
Court,  and  I  don't  see  that  we  are  called  upon  to 
decide  anything  about  it.  Let  the  prisoner  be 
arraigned. 

Mr.  Cooper — I  would  ask  the  gentlemen  who 
are  counsel  for  the  prisoner,  whether  they  desire 
that  the  array  in  this  case  should  be  quashed. 
If  they  do,  I  am  instructed  to  say  on  the  part  of 
the  counsel  for  the  government  that  there  will  be 
no  objection  to  quashing  the  array. 


18 


TREASON  CASES. 


Mr.  Stevens. — If  your  honors  please,  if  the 
prosecution  will  add  to  that  agreement,  that  the 
prisoner  shall  be  admitted  to  bail  to  appear  at 
the  next  session  of  this  Court,  ample  bail,  and 
that,  according  to  what  we  believe  to  be  the  Act 
of  Congress,  the  trial  shall  be  ordered  in  the 
county  of  Lancaster,  it  is  our  desire  ;  otherwise 
not. 

Mr.  Ashmead. — We  cannot  violate  the  law 
which  provides  that  those  who  are  charged  with 
murder  and  treason  are  not  admissable  to  bail. 

Mr.  Stevens. — I  don't  think  that  universally 


follows ;  where  the  guilt  is  apparent,  and  the 
presumption  violent,  they  cannot,  but  in  all  other 
cases  they  can,  if  my  recollection  of  the  Consti- 
tution serves  me  right. 

Mr.  Ashmead. — Where  the  Grand  Jury  have 
found  a  true  bill,  I  should  think  the  presumption 
was  violent,  and  that  the  Court  could  not  admit 
to  bail. 

Judge  Grter. — We  have  a  great  deal  of  busi- 
ness before  us,  let  us  not  take  up  the  time  in 
useless  discussion. 

Let  the  prisoner  be  arraigned. 


UNITED   STATES   v.    HAN  WAY. 


Castner  Hanway  was  arraigned  in  the  follow- 
ing form : 

By  the  Grand  Inquest  of  the  United  States  of 
America,  inquiring  for  the  Eastern  District  of  Penn- 
sylvania, who  on  their  oaths  and  affirmations  re- 
spectively do  present,  that  you  Castner  Hanway, 
yeoman,  of  the  District  aforesaid,  owing  allegiance 
to  the  United  States  of  America,  wickedly  devising 
and  intending  the  peace  and  tranquillity  of  the  said 
United  States  to  disturb,  and  to  prevent  the  execu- 
tion of  the  laws  thereof  within  the  same,  to  wit,  a 
law  of  the  said  United  States,  entitled  "An  act  re- 
specting fugitives  from  justice  and  persons  escaping 
from  the  service  of  their  masters,"  approved  Feb- 
ruary twelfth,  one  thousand  seven  hundred  and 
ninety-three,  and  also  a  law  of  the  said  United 
States,  entitled  "  An  act  to  amend,  and  supplement- 
ary to,  the  act  entitled  'An  act  respecting  fugitives 
from  justice  and  persons  escaping  from  the  service 
of  their  masters/  approved  February  twelfth,  one 
thousand  seven  hundred  and  ninety-three,"  which 
latter  supplementary  act  was  approved  Septem- 
ber eighteenth,  one  thousand  eight  hundred  and 
fifty,  on  the  eleventh  day  of  September,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  fifty- 
one,  in  the  County  of  Lancaster,  in  the  State  of 
Pennsylvania  and  District  aforesaid,  and  within  the 
iurisdiction  of  this  Court,  wickedly  and  traitorously 
did  intend  to  levy  war  against  the  said  United  States 
within  the  same. 

And  to  fulfil  and  bring  to  effect  the  said  traitorous 
intention  of  you,  the  said  Castner  Hanway,  you, 
the  said  Castner  Hanway,  afterwards,  to  wit,  on 
the  day  and  year  aforesaid,  in  the  said  State,  Dis- 
trict, and  County  aforesaid,  and  within  the  jurisdic- 
tion of  this  Court,  with  a  great  multitude  of  persons, 
whose  names  to  this  Inquest  are  as  yet  unknown,  to 
a  great  number,  to  wit,  to  the  number  of  one  hun- 
dred persons  and  upwards,  armed  and  arrayed  in  a 
warlike  manner,  that  is  to  say,  with  guns,  swords, 
and  other  warlike  weapons,  as  well  offensive  as  de- 
fensive, being  then  and  there  unlawfully  and  traitor- 
ously assembled,  did  traitorously  assemble  and  com- 
bine against  the  said  United  States,  and  then  and 
there,  with  force  and  arms,  wickedly  and  traitor- 
ously, and  with  the  wicked  and  traitorous  intention 
to  oppose  and  prevent,  by  means  of  intimidation  and 
violence,  the  execution  of  the  said  laws  of  the  United 
States,  within  the  same,  did  array  and  dispose  them- 
selves in  a  warlike  and  hostile  manner  against  the 
said  United  States,  and  then  and  there,  with  force 


and  arms,  in  pursuance  of  such  their  traitorous  in- 
tention, you,  the  said  Castner  Hanaway,  with  the 
said  persons  so  as  aforesaid,  wickedly  and  traitor- 
ously did  levy  war  against  the  United^States. 

And  further  to  fulfil  and  bring  to  effect  the  said 
traitorous  intention  of  you  the  said  Castner  Hanway, 
and  in  pursuance  and  in  execution  of  the  said 
wicked  and  traitorous  combination  to  oppose,  resist 
and  prevent  the  said  laws  of  the  United  States  from 
being  carried  into  execution,  you,  the  said  Castner 
Hanaway,  afterwards,  to  wit,  on  the  day  and  year 
first  aforesaid,  in  the  State,  District  and  County 
aforesaid,  and  within  the  jurisdiction  aforesaid,  with 
the  said  persons  whose  names  to  this  Inquest  are  as 
yet  unknown,  did  wickedly  and  traitorously  assemble 
against  the  said  United  States,  with  the  avowod  in- 
tention by  force  of  arms  and  intimidation,  to  pre- 
vent the  execution  of  the  said  laws  of  the  said 
United  States,  within  the  same ;  and  in  pursuance 
and  execution  of  such  their  wicked  and  traitorous 
combination,  you  the  said  Castner  Hanaway,  then 
and  there  with  force  and  arms,  with  the  said  per- 
sons to  a  great  number,  to  wit,  the  number  of  one 
hundred  persons  and  upwards,  armed  and  arrayed 
in  a  warlike  manner,  that  is  to  say,  with  guns, 
swords,  and  other  warlike  weapons,  as  well  offensive 
as  defensive,  being  then  and  there  unlawfully  and 
traitorously  assembled,  did  wickedly,  knowingly 
and  traitorously  resist  and  oppose  one  Henry  H. 
Kline,  an  officer  duly  appointed  by  Edward  D.  In- 
graham,  Esquire,  a  Commissioner  duly  appointed  by 
the  Circuit  Court  of  the  United  States  for  the  said 
District,  in  the  execution  of  the  duty  of  the  office  of  the 
said  Kline,  he,  the  said  Kline,  being  appointed  by  the 
said  Edward  D.  Ingraham,  Esquire,  by  writing  under 
his  hand  to  execute  warrants  and  other  process 
issued  by  him  the  said  Ingraham,  in  the  perform- 
ance of  his  duties  as  Commissioner  under  the  said 
laws  of  the  United  States  ;  and  then  and  there,  with 
force  and  arms,  with  the  said  great  multitude  of  per- 
sons, so  as  aforesaid  unlawfully  and  traitorously 
assembled,  and  armed  and  arrayed  in  manner  as 
aforesaid,  you,  the  said  Castner  Hanway,  wickedly 
and  traitorously  did  oppose  and  resist,  and  prevent 
the  said  Kline  from  executing  the  lawful  process  to 
him  directed  and  delivered  by  the  said  Commissioner 
against  sundry  persons,  then  residents  of  said  County, 
who  had  been  legally  charged  before  the  said  Com- 
missioner as  being  persons  held  to  service  or  labor 
in  the  State  of  Maryland,  and  owing  such  service  or 
labor  to  a  certain  Edward  Gorsuch,  under  the  laws 
of  the  said  State  of  Maryland,  had  escaped  there- 


UNITED  STATES  V.  HANWAY. 


19 


from  into  the  said  Eastern  District  of  Pennsylvania  : 
which  process,  duly  issued  by  the  said  Commis- 
sioner, the  said  Kline  then  and  there  had  in  his  pos- 
session, and  was  then  and  there  proceeding  to  exe- 
cute as  by  law  he  was  bound  to  do :  and  so  the 
Grand  Inquest,  upon  their  respective  oaths  and 
affirmations  aforesaid,  do  say,  that  you  the  said  Cast- 
ner  Hanway,  in  manner  aforesaid  as  much  as  in  you 
lay,  wickedly  and  traitorously  did  prevent,  by  means 
of  force  and  intimidation,  the  execution  of  the  said 
laws  of  the  United  States,  in  the  said  State  and  Dis- 
trict. 

And  further  to  fulfil  and  bring  to  effect  the  said 
traitorous  intention  of  you.  the  said  Castner  Han- 
way, and  in  further  pursuance  and  in  execution  of 
the  said  wicked  and  traitorous  combination  to  oppose, 
resist,  and  prevent  the  execution  of  the  said  laws  of 
the  said  United  States,  in  the  State  and  District  afore- 
said you,  the  said  Castner  Hanway  afterwards,  to  wit, 
on  the  day  and  year  first  aforesaid,  in  the  State, 
county,  and  district  aforesaid,  and  within  the  juris- 
diction of  this  court,  with  the  said  persons  whose 
names  to  the  grand  Inquest  aforesaid  are  as  yet  un- 
known, did  wickedly  and  traitorously  assemble 
against  the  said  United  States,  with  the  avowed  in- 
tention, by  means  of  force  and  intimidation,  to  pre- 
vent the  execution  of  the  said  laws  of  the  United 
States,  in  the  State  and  district  aforesaid,  and  in  pur- 
suance and  execution  of  such,  their  wicked  and  trai- 
torous combination  and  intention,  then  and  there  in 
the  State,  district  and  county  aforesaid,  and  within  the 
jurisdiction  of  this  court,  with  force  and  arms,  with 
a  great  multitude  of  persons,  to  wit :  the  number  of 
of  one  hundred  persons  and  upward,  armed  and  ar- 
rayed in  a  warlike  manner,  that  is  to  say,  with  guns, 
swords,  and  other  warlike  weapons,  as  well  offen- 
sive as  defensive,  being  then  and  there  unlawfully 
and  traitorously  assembled,  you,  the  said  Castner 
Hanway,  did,  knowingly  and  unlawfully,  assault 
the  said  Henry  H.  ELLine,  he,  the  said  Kline,  being 
an  officer  appointed  by  writing  under  the  hand  of 
the  said  Edward  D.  In  graham,  Esquire,  a  commis- 
sioner under  said  law,  to  execute  warrants  and 
other  process,  issued  by  the  said  commissioner  in 
the  performance  of  his  duties  as  such ;  and  you,  the 
said  Castner  Hanway,  did  then  and  there,  trai- 
torously with  force  and  arms,  against  the  will  of  the 
said  Kline,  liberate  and  take  out  of  his  custody,  per- 
sons by  him  before  that  time  arrested,  and  in  his 
lawful  custody  then  and  there  being,  by  virtue  of 
lawful  process  against  them  issued  by  the  said  com- 
missioner, they  being  legally  charged  with  being 
persons  held  to  service  or  labor  in  the  State  of 
Maryland,  and  owing  such  service  or  labor  to  a  cer- 
tain Edward  Grorsuch,  under  the  laws  of  the  said 
State  of  Maryland,  who  had  escaped  therefrom  into 
the  said  district  and  so  the  Grand  Inquest  afore- 
said, upon  their  oaths  and  affirmations  aforesaid,  do 
say  that  you,  the  said  Castner  Hanway,  as  much  as 
in  you  lay,  did  then  and  there,  and  in  pursuance  and 
in  execution  of  the  said  wicked  and  traitorous  com- 
bination and  intention,  wickedly  and  traitorously, 
by  means  of  force  and  intimidation,  prevent  the 
execution  of  the  said  laws  of  the  United  States,  in 
the  said  State  and  district. 

And  further  to  fulfil  and  bring  to  effect  the  said 
traitorous  intention  of  you,  the  said  Castner  Han- 
way, and  in  pursuance  and  in  execution  of  the  said 
wicked  and  traitorous  combination  to  oppose,  re- 
sist and  prevent  the  said  laws  of  the  United  States 
from  being  carried  into  execution,  you,  the  said 
Castner  Hanway,  afterwards,  to  wit,  on  the  day  and 
year  first  aforesaid,  and  on  divers  other  days,  both 
before  and  afterwards  in  the  State  and  district  afore- 
Eaid,  and  within  the  jurisdiction  of  this  court,  with 


]  the  said  persons  to  this  Inquest ^ls  yet  unknown, 
;  maliciously  and  traitorously  did  meet,  conspire, 
consult,  and  agree  among  themselves,  further  to  op- 
pose, resist,  and  prevent,  by  means  of  force  and  in- 
timidation, the  execution  of  the  said  laws  herein 
before  specified. 

And  further  to  fulfil,  perfect,  and  bring  to  effect, 
the  said  traitorous  intention  of  you,  the  said  Cast- 
ner Hanway,  and  in  pursuance  and  execution  of 
the  said  wicked  and  traitorous  combination  to  op- 
pose and  resist  the  said  laws  of  the  United  States 
from  being  carried  into  execution,  in  the  State  and 
district  aforesaid,  you,  the  said  Castner  Hanway, 
together  with  the  other  persons  whose  names  are 
to  this  Inquest  as  yet  unknown,  on  the  day  and  year 
first  aforesaid,  and  on  divers  other  days  and  times, 
as  well  before  and  after,  at  the  District  aforesaid 
within  the  juris  diction  of  the  said  court,  with  force 
and  arms,  maliciously  and  traitorously  did  prepare 
and  compose,  and  did  then  and  there  maliciously 
and  traitorously  cause  and  procure  to  be  prepared 
and  composed,  divers  books,  pamphlets,  letters,  de- 
clarations, resolutions,  addresses,  papers  and  wri- 
tings, and  did  then  and  there  maliciously  and 
traitorously  publish  and  disperse,  and  cause  to  be 
published  and  dispersed  divers  other  books,  pamph- 
lets, letters,  declarations,  resolutions,  addresses, 
papers  and  writings,  the  said  books,  pamphlets, 
letters,  declarations,  resolutions:  addresses,  papers, 
and  writings,  so  respectively  prepared,  composed, 
published  and  dispersed,  as  last  aforesaid,  contain- 
ing therein,  amongst  other  things,  incitement, 
encouragement,  and  exhortations,  to  move,  induce, 
and  persuade  persons  held  to  service  in  any  of  the 
United  States  by  the  laws  thereof,  who  had  escaped 
into  the  said  district,  as  well  as  other  persons,  citi- 
zens of  said  district,  to  resist,  oppose,  and  prevent, 
by  violence  and  intimidation,  the  execution  of  the 
said  laws,  and  also  containing  therein  instructions 
and  directions  how  and  upon  what  occasion,  the 
traitorous  purposes  last  aforesaid,  should  and  might 
be  carried  into  effect  contrary  to  the  form  of  the 
act  of  Congress  in  such  cases  made  and  provided, 
and  against  the  peace,  dignity  of  the  United  States. 

Glebe:. — How  say  you  Castner  Hanway.  are 
you  guilty  or  not  guilty  ? 
Prisoner. — Not  guilty. 
Clerk. — How  will  you  be  tried  ? 
Prisoner. — By  God  and  my  Country. 
Clerk. — God  send  you  a  good  deliverance. 

On  the  arraignment  of  the  defendant,  the  fol- 
lowing counsel  appeared  : 

For  the  United  States. 
JOHN  W.  ASHMEAD. 
GEORGE  L.  ASHMEAD. 
JAMES  R.  LUDLOW. 

For  the  State  of  Maryland. 
ROBERT  J.  BRENT. 
JAMES  COOPER. 
R.  M.  LEE. 

For  the  Defendant,  Castner  Hanway. 

JOHN  M.  READ. 
J.  J.  LEWIS,  of  Westchester. 
THEODORE  CUTLER. 
THADDEUS  STEVENS,  of  Lancaster 
W,  ARTHUR  JACKS  UN. 


20 


TREASON  CASES. 


Clerk. — Castner  Hanway  !  These  good  men, 
whom  you  shall  now  hear  called,  are  those  who 
shall  pass  between  you  and  the  United  States, 
upon  your  life  and  death.  If  you  will  challenge 
them,  or  any  of  them,  you  must  challenge  them 
before  they  are  sworn  or  affirmed,  and  }rou  shall 
be  heard. 

Solomon  Newman,  called  and  answered. 

Clerk. — Juror  look  upon  the  prisoner.  Pri- 
soner look  upon  the  juror.  What  say  you,  chal- 
lenged or  not  challenged  ? 

Prisoner. — Not  challenged. 

Mr.  Ludlow. — On  behalf  of  the  Government 
we  propose  to  submit  a  series  of  questions,  and  it 
may  be  as  well  for  me  to  address  the  Court  upon 
this  subject  now  as  at  any  other  time.  In  ac- 
cordance with  what  has  been  already  intimated, 
we  claim  the  right  of  setting  aside  any  juror 
until  the  panel  is  exhausted.  If  he  is  not  set 
aside  I  propose  to  ask  him  each  and  all  of  these 
questions,  to  wit : 

1  Have  you  any  conscientious  scruples,  upon 
the  subject  of  capital  punishment,  so  that  you 
would  not,  because  you  conscientiously  could 
not,  render  a  verdict  of  treason,  death  being  the 
punishment,  though  the  evidence  required  such 
a  verdict  ? 

2  Have  you  formed  or  expressed  any  opinion, 
relative  to  the  matter  now  before  the  Court  ? 

8  Are  you  sensible  of  any  prejudice  or  bias 
thereon  ? 

4  Have  you  formed,  or  expressed  any  opinion, 
as  to  the  guilt  or  innocence  of  the  accused,  or  of  the 
other  persons  alleged  to  have  participated  with 
him  in  the  offence  charged  against  him  in  the 
indictment  ? 

5  Have  you  heard  anything  of  this  case,  which 
has  induced  you  to  make  up  your  mind  as  to 
whether  the  offence  charged  in  the  indictment, 
constitutes  treason  or  not  ? 

6  Have  you  formed  an  opinion  that  the  law  of 
the  United  States,  known  as  the  Fugitive  Slave 
Law  of  1850,  is  unconstitutional ;  so  that  you 
cannot  convict  a  person  indicted  under  it ;  for 
that  reason,  if  the  facts  alleged  in  the  indictment 
are  proved,  and  the  Court  hold  the  statute  to  be 
constitutional  ? 

"  We  propose  now,  to  interrogate  the  jurors  as 
to  each,  and  all  of  these  questions." 

Mr.  Read.  "May  it  please  your  honors,  we 
have  never  seen  these  questions,  nor  heard  them 
till  this  moment,  and  we  are  called  upon  I  sup- 
pose, of  course,  as  the  counsel  for  the  prisoner, 
to  say  what  we  think  about  them.  It  appears 
to  me,  that  this  is  a  sort  of  nest  of  questions,  all 
or  most  of  which  might  have  been  compressed  in 
one  or  two,  that  is,  either  as  the  one  used  in  re- 
gard to  the  Convent  rioters,  or  on  the  subject  of 
the  Kensington  riots  ;  general  in  their  character, 
and  of  course  including  all  the  circumstances  of 
the  case.  The  first  one  we  do  not  intend  to  make 
any  difficulty  about,  but  here  is  a  series  of  ques- 
tions, all  of  which  may  be  comprised  in  one 
general  one,  but  are  used  for  the  purpose  of 
coming  out  finally,  to  another  question,  which  is 
not  put  in  the  form  I  think  it  ought  to  be,  and 
to  which  I  have  a  very  great  objection." 

We  will  take  them  up  in  order. 


First.  Have  you  any  conscientious  scruples- 
upon  the  subject  of  capital  punishment,  so  that 
you  would  not,  because  you  conscientiously  could 
not,  render  a  verdict  of  treason,  death  being  the 
punishment,  though  the  evidence  required  such 
a  verdict  ? 

"  I  believe  if  that  is  put  in  fche  form  of  Com.  v. 
Lesher,  or  like  it,  we  dont  object  to  it." 

Mr.  Ashmead.    "It  is  the  precise  form." 

Mr.  Read — Second.  Have  you  formed  or  ex- 
pressed any  opinion  relative  to  the  matter  now 
before  the  Court  ?  That  is  rather  to  the  favour — 
it  is  not  the  principal  challenge.  I  do  not  think 
there  is  any  precedent  for  that  question  put  in 
that  shape.  If  there  be  an  authority  it  ought  to 
be  stated,  because  this  is  a  question  of  principal 
challenge  that  if  answered  in  the  negative  or 
affii*mative  the  Court  is  to  reject  as  I  understand 
it — it  is  too  general,  and  is  not  such  a  question  as 
ought  to  be  put  in  that  shape — and  unless  there 
is  some  binding  precedent  for  it,  it  is  not  such 
a  one  as  we  think  ought  to  be  put  in  the  first 
instance. 

Fourth.  There  are  no  other  persons  charged  in 
the  indictment.  It  is  therefore  not  such  a  ques- 
tion as  ought  to  be  put.  It  ought  not  certainly 
to  be  put  in  that  shape.  Nor  ought  it  to  be  put 
as  a  repetition  of  the  second  question,  which  it  is 
to  a  certain  extent.  (Reads  the  question. )  Per- 
haps I  read  the  question  wrong — but  it  comes  to 
the  same  thing.  It  is  a  repetition  of  the  same 
thing.  I  would  refer  to  the  questions,  very  well 
collected  by  Mr.  Wharton,  in  his  work  on  Criminal 
Law,  which  I  believe  contains  nearly  all  the  forms. 

"  Have  you  formed  and  expressed  an  opinion  about 
the  guilt  of  Col.  Burr?" — Marshall,  C.  J.,  Burr's 
Trial. 

"Have  you  formed  and  delivered  an  opinion  on 
the  subject  matter  of  this  indictment?" — Chase  J., 
in  U.  S.  v.  Callender. 

"  Have  you  heard  any  thing  of  this  case,  so  as  to 
make  up  your  mind?"  "Do  you  feel  any  bias  or 
prejudice,  for  or  against  the  prisoner  at  the-  bar  1" — 
Parker  J.,  Selfridge's  Trial. 

"  Have  you  formed  and  expressed  an  opinion  of 
the  guilt  or  innocence  of  the  prisoners  ?" — Marshall, 
C.  J.,  in  U.  S.  v.  Hare. 

"Have  you  formed  or  expressed  an  opinion  as  to- 
the  general  guilt  or  innocence  of  all  concerned  in 
the  offence  ?"  (viz.  the  burning  of  the  convent  in 
Charlestown,  Mass.) — Supreme  Court  of  Mass.,  on 
trial  of  the  Charlestoivn  rioters. 

"  Have  you  made  up  your  mind  as  to  which  of 
the  two  parties  was  in  the  wrong,  in  the  Kensington 
riots?" — Rogers,  J.,  Supreme  Court  of  Pennsylvania, 
April  29,  1845,  in  Com.  v.  Sherry,  one  of  the  Ken- 
sington rioters. 

1.  "  Have  you,  at  any  time,  formed  or  expressed 
an  opinion,  or  even  entertained  an  impression  which 
may  influence  your  conduct  as  a  juror?" 

2.  "  Have  you  any  bias  or  prejudice  on  your 
mind,  for  or  against  the  prisoner?" — Ogden,  J.,  on 
a  homicide  trial.  (Wharton's  Amer.  Crim.  Law, 
p.  611.) 

Next.  Have  you  heard  anything  of  this  case 
which  has  induced  you  to  make  up  your  mind  as 
to  whether  the  offence  charged  in  the  indictment 
constitutes  treason  or  not?  I  object  to  this 
question.  I  think  it  is  interfering  entirely  too 
1  much  with  the  province  of  the  jury  after  the  cause 


UNITED  STATES  V.  HANWAY. 


21 


is  heard.  Suppose  a  juror  comes  into  the  jury- 
box  and  thinks  this  is  treason — have  we  not  a 
right  to  reject  him  ?  As  Chief  Justice  Marshall 
has  said,  it'  you  look  at  the  question  in  both  ways 
— that  which  ought  to  exclude  him  if  he  has  a 
bias  for  the  prisoner,  ought  also,  if  he  has  a  bias 
the  other  way.  Suppose  any  body  here  has  made 
up  his  mind  that  this  is  a  subject  of  treason,  is  it 
a  reason  why  he  should  be  excluded  ?  The  con- 
sequence may  be,  if  they  are  to  put  this  question 
in  the  first  instance,  that  jurors  never  can  be 
got  under  these  circumstances.  That  is  a  ques- 
tion of  law  which  is  to  be  decided  in  the  course  of 
this  case,  and  which  we  are  not  to  anticipate 
until  it  is  argued  and  finally  decided  by  the 
Court  and  jury.  We  decidedly  object  to  this 
question. 

Then  comes  another  one,  "  Have  you  formed 
an  opinion  that  the  law  of  the  United  States 
known  as  the  Fugitive  Slave  Law  of  1850,  is  un- 
constitutional —  so  that  you  cannot  convict  a 
person  indicted  under  it  for  that  reason,  if  the 
facts  alleged  in  the  indictment  are  proved,  and 
the  Court  hold  the  statute  to  be  constitutional  ? 
May  it  please  your  Honors,  this  is  a  point  about 
which  I  had  desired  that  there  should  be  no 
preliminary  matter  before  this  Court  and  Jury,  to 
raise  unnecessarily  a  question,  we  are  not  here 
to  dispute — I  speak  for  myself  and  I  believe  for  my 
colleagues — we  are  not  here  to  dispute  the  con- 
stitutionality of  that  law — and  we  do  not  intend 
to  argue  it.  This  question  is  not  put  in  the 
form  in  which  it  has  been  put  in  the  Circuit 
Court  in  Boston,  which  was  intended  to  decide 
so  far  as  the  Judge  and  Jury  were  concerned, 
contrary  to  the  established  law  of  Pennsylvania, 
and  I  hoped  that  in  a  case  like  the  present 
where  a  question  of  life  and  death  is  involved, 
we  should  not  have  had  a  question  of  this  kind 
obtruded  in  this  particular  shape.  I  may  state 
frankly  what  my  objection  is — 1  understand  it  to 
have  been  laid  down  in  the  Circuit  Court  of  Mas- 
sachusetts, that  the  jury  are  not  the  judges  of 
the  law  and  the  fact,  and  that  the  question  was 
there  formed  in  such  a  way  as,  that  a  juror 
after  having  taken  the  oath,  was  bound  by  it 
as  if  it  had  been  put  in  the  oath  of  a  juryman 
that  he  was  not  to  be  the  judge  of  the  law 
at  all. 

I  wanted  to  avoid  this  question.  And  I  had 
hoped,  that  when  we  frankly  say  that  we  don't 
intend  to  contend  for  the  constitutionality  or 
unconstitutionality  of  this  law,  that  then  there 
would  not  be  a  question  raised  to  involve  this 
point  beforehand,  and  bind  the  conscience  of  the 
iuryman  before  he  comes  into  the  jury  box.  If  they 
would  put  a  general  question  as  to  the  constitu- 
tionality or  unconstitutionality  of  the  law,  I  dont 
know  that  we  would  object  to  it  in  that  shape; 
but  it  ought  not  to  be  in  such  a  shape,  as  to  in- 
volve the  difference  existing  between  the  opinion 
of  the  Court  and  juror. 

The  questions  with  regard  to  masonic  institu- 
tions and  religious  persuasions,  have  always  been 
ruled  out,  though  they  certainly  have  more  or 
less  influence;  but  every  thing  of  tbat  kind, 
interfering  with  the  private  rights  of  indi- 
viduals, have  never  been  put  by  Courts,  that 


I  know  of.  I  have  never  known,  except  in  the 
instance  alluded  to,  of  such  a  question  being  put 
to  a  juror.  There  was  a  distinction  there,  which 
in  Massachusetts,  according  to  the  ruling  of  the 
Court  there,  may  be  law,  but  which  in  Pennsyl- 
vania, undoubtedly  would  not  be  ;  according  to 
our  understanding.  Upon  that  part  of  the  sub- 
ject, I  dont  wish  to  trench,  but  we  object  to  the 
form  of  that  question  ;  we  object  also,  to  the 
fifth  question,  and  we  think  they  ought  to  be 
consolidated  in  such  a  way,  as  to  make  them  as 
few  as  possible." 

Mr.  Ludlow.  "  We  are  not  disposed,  may  it 
please  your  honors,  at  this  stage  of  this  cause, 
to  allow  a  matter  of  as  much  importance  as  this 
is,  to  pass  without  some  effort  upon  our  part,  to 
preserve  the  justice  of  the  country  pure  and  un- 
tainted. If  we  are  to  summon  jurors  to  attend 
at  this  Court,  and  they  are  allowed  to  pass  into 
the  jury  box  without  most  extraordinary  caution 
on  our  part,  as  well  as  upon  the  side  of  our 
friends  representing  the  prisoner  at  the  bar ;  if 
we  do  not  use  every  means  to  preserve  pure  the 
source,  if  I  may  so  call  it,  of  justice  ;  where  are 
we,  Sir  ?  In  the  matter  of  this  questioning  of 
jurors,  what  is  the  principle  upon  which  it  all 
moves,  and  has  moved,  from  the  foundation  of 
the  Court  to  the  present  moment?  It  is  this: 
as  civilization  and  intelligence  advances,  and  as 
men  are  presumed  to  know  what  is  taking  place 
about  them,  and  to  have  formed  and  expressed 
opinions  upon  all  subjects,  and  especially  in  a 
country  such  as  ours ;  we  are  to  take  it  for 
granted,  that  unless  we  press  home  upon  jurors, 
certain  questions  essential  to  the  proper  trial  of 
a  cause,  that  we  cannot  present  to  the  country,  to 
the  Court,  and  to  the  parties,  such  a  jury  as  it 
is  proper  for  us  to  present  upon  a  trial  of  such 
importance;  as  this.  The  principle  adopted  is, 
that  in  proportion  as  we  advance  in  civilization, 
and  divers  questions  arise,  the  Courts,  exercising 
a  sound  discretion,  allow  such  questions  to  be  put 
to  the  jurors,  as  will  effectually  guard  the  jury 
box. 

The  other  side  make  no  objection  to  the  first 
question,  and  that  is  disposed  of.  What  is  the 
object  of  the  series  succeeding  the  first  ?  Simply 
to  come  to  some  definite  opinion  as  to  the  views 
of  the  jurors.  What  would  be  the  result  if  in 
answer  to  the  fii6t  of  them,  the  juror  should  say, 
I  have  formed  an  opinion?  Is  he  a  proper  man 
to  sit  in  that  Jury  box.  Third,  "  Are  you  sensi- 
ble of  any  prejudice  or  bias  thereon  ?"  Ought 
he  to  take  his  seat  in  the  jury  box,  if  he  is  sen- 
sible of  a  bias  ?  These  questions  ought  to  be 
put — it  is  absolutely  necessary  that  they  should 
be  put — for  this  Court  could  not  move  with  jus- 
tice a  step  unless  they  are." 

Judge  Grier.  Is  not  that  question  too  vague — 
a  man  could  hardly  tell  how  to  answer  it — it 
would  put  it  in  the  power  of  any  one  to  challenge 
himself. 

Mr.  Ludlow.  The  question  was  allowed  to 
be  put  in  the  same  way  in  the  Circuit  Court  in 
Boston. 

Mr.  Cooper.  We  have  no  objections  on  the 
part  of  the  prosecution,  to  modify  that  question, 
and  make  it  more  directly  to  the  point  —  but 


22 


TREASON  CASES. 


that  is  the  form  in  which  it  was  put  in  the  case 
of  Shaclrach. 

Mr.  Stevens.  I  would  suggest  whether  it  is 
not  the  duty  of  the  prosecution — first  to  chal- 
lenge if  they  wish  to — and  whether  after  they 
call  upon  the  defenda.  .t  to  look  upon  the  prisoner, 
they  have  not  precluded  themselves. 

Mr.  Ludlow.  I  understand  that  the  present 
course  is  the  practice  in  this  Court ;  and  I  had  the 
honor  to  appear  before  this  Court  in  a  case,  in 
which  the  very  principle  was  allowed  to  be  acted 
upon.  The  prisoner  was  first  called  upon  to 
challenge  the  juror  or  not,  and  then  the  ques- 
tions were  put  to  him  by  the  officers  of  the 
Government. 

Judge  Grier.  So  far  as  the  experience  of 
either  member  of  the  Court  goes,  the  practice 
has  been  as  you  are  now  proceeding.  I  don't 
know  any  other — I  don't  say  it  is  right  or  wrong. 
I  merely  mention  it  as  a  matter  of  fact. 

Judge  Kane.  It  has  been  the  uniform  course 
in  this  Court. 

Mr.  Lewis.  The  principle  is  always  that  the 
plaintiff  shall  challenge  first. 

Judge  Grier.  They  have  no  challenge  only 
for  cause. 

Mr.  Ashmead.  We  contend  that  we  can  set 
aside  until  the  entire  panel  is  exhausted.  In  the 
proceedings,  the  direction  is,  first — Juror,  look 
upon  the  prisoner — prisoner,  look  upon  the  juror. 
Challenge  or  not  challenge  9  Then  the  prisoner 
answers  ;  and  if  the  juror  is  not  challenged,  we 
have  a  right  to  submit  these  interrogatories,  if 
the  Court  determine  them  to  be  proper — and 
then  we  may  set  him  aside. 

Mr.  Read.  As  to  the  mode  of  challenging,  I 
supposed  in  England  the  defendant  challenges 
first,  but,  then,  as  I  understand  it,  the  Crown 
don't  put  any  such  question  as  this — the  Ameri- 
can challenges  for  cause,  and  the  juror  stands 
by,  and,  if  the  panel  is  exhausted,  then  come  up 
the  questions.  But,  according  to  the  method 
adopted  in  our  State  Courts,  for  the  convenience 
of  parties ;  and  under  the  ruling  in  Com.  v. 
Lesher,  in  17  S.  &  R.  certain  questions  are  put, 
and  it  seems  that  it  is  proper  that  they  should 
be  put  to  the  juror  just  as  he  comes  up.  I  be- 
lieve that  is  the  case  where  there  are  a  nest  of 
questions  of  this  kind — they  are  put  to  every 
juror  as  he  comes  up,  and  if  he  answers  affirm- 
atively, we  challenge  or  not,  and  then  the  United 
States  challenges,  and  there  is  a  deviation  from 
the  common  law  form  in  the  mode  of  doing  it. 
It  of  course  would  be  more  convenient  and  proper 
that  the  United  States  should  exercise  it  in  the 
first  instance. 

Judge  Kane.  I  believe  the  uniform  practice 
of  the  Circuit  Court,  so  long  as  I  remember  it, 
and  certainly  for  the  last  five  years,  has  been 
otherwise  than  as  the  gentleman  who  has  last 
spoken  would  advise. 

Mr.  Ashmead.  Here  it  is  settled,  in  the  Cir- 
cuit Court  of  the  United  States,  Baldwin's  Reports, 
in  the  case  of  the  United  States  v.  Wilson  and 
Porter,  the  Court  decided  that  the  Attorney 
General  had  not  a  right  to  challenge,  but  to  set 
aside  the  juror  till  the  panel  was  gone  through 
with. 


Judge  Grier,  (to  Mr.  Ludlow).  This  is  an 
interruption  to  your  remarks  on  the  ques- 
tions. 

Mr.  Ludlow.  The  next  question  in  order  is, 
'  Have  you  formed  or  expressed  any  opinion  as 
to  the  guilt  or  innocence  of  the  accused,  or  of 
the  other  persons  alleged  to  have  participated 
with  him  in  the  offence  charged  against  him  in 
the  indictment?'  What  objection  can  there  be  to 
that  question  ?  In  a  case  like  this,  where  there 
are  no  accessories,  the  opinion  of  the  juror  as  to 
the  guilt  or  innocence  of  other  persons  alleged 
to  have  participated  with  him  in  the  offence, 
may  be  of  serious  moment,  and  greatly  interfere 
with  his  capacity  as  a  juror.  I  submit  that 
question,  though  it  may,  perhaps,  be  but  adding 
a  little  to  the  others  that  have  preceded  it — but 
no  injury  can  result  to  the  prisoner  from  it — 
and  if  it  is  essential  to  the  rights  of  the  United 
States,  it  should  be  put. 

Fifth  question.  Is  this  Court  to  bind  themselves 
to  the  prevailing  state  of  public  opinion  upon 
this  subject  ?  Opinions  have  been  advanced 
openly,  that  there  was  no  treason  in  this  offence, 
and  the  United  States  Government  has  been 
ridiculed  because  that  it  should  pretend  to 
charge  a  man  with  treason  who  had  committed 
an  act  which,  according  to  the  law  of  the  United 
States,  was  treason.  It  has  been  boldly  ex- 
pressed everywhere,  that  this  was  not  treason, 
by  a  certain  set  of  men  ;  and  suppose  the  repre- 
sentative of  that  class  of  men  should  take  his 
stand  as  a  juror.  Is  he  to  pass  into  the  jury 
box,  having  made  up  his  mind  that  this  is  not 
treason.  Is  he  to  go  in  with  such  an  opinion  as 
that,  which  would  make  it  a  farce  for  us  to  come 
into  Court  and  attempt  to  try  the  cases 

Judge  Grier.  Is  not  this  included  in  the 
general  question,  as  to  whether  he  has  not  formed 
an  opinion  as  to  the  guilt  or  innocence  of  the 
defendant  ? 

Mr.  Ludlow.  The  difference  is  this :  a  man 
may  have  expressed  no  opinion  as  to  Hanway's 
case,  and  yet  that  man  may  have  made  up  his 
mind  that  whatever  took  place  in  Lancaster  was 
not  treason.  The  last  question  is,  "Have  you 
formed  an  opinion  that  the  Law  of  the  U.  S., 
known  as  the  Fugitive  Slave  Law  of  1850,  is  un- 
constitutional, so  that  you  cannot  convict  a  per- 
son indicted  under  it  for  that  reason,  if  the  facts 
alleged  in  the  indictment  are  proved,  and  the 
Court  holds  the  Statute  to  be  constitutional." 
This  question  is  a  very  important  one,  and  it  is 
of  all  others  the  most  essential  to  the  proper 
selection  of  the  jury.  It  is  the  identical  question 
determined  by  the  Circuit  Court  to  be  put  in 
Boston.  A  juror  may  say,  "  I  do  not  say  whether 
it  is  constitutional  or  not," — he  may  have  some 
vague  idea  as  to  it  which  would  not  interfere 
with  his  exercising  his  duties  at  the  same  time, 
and  he  may  not  have  formed  such  an  opinion  of 
it,  so  that  he  could  not  convict  a  person  indicted 
under  it  for  that  reason,  if  the  facts  alleged  in 
the  indictment  are  proved,  and  the  Court  held 
the  Statute  to  be  constitutional.  It  is  important 
that  the  question  as  to  how  far  a  jury  shall  con- 
sider the  law  should  be  limited  by  prudence  and 
judgment,  and  if  I  state  that  Judge  Baldwin  has 


UNITED  STATES  V.  HANWAT. 


23 


determined  that  the  jury  shall  take  the  law  in  a 
measure  as  it  conies  from  the  Court — 

Mb.  Read.  Do  you  mean  to  state  that  as  a 
principle  of  law  ? 

Mb.  Ashmead.    Yes,  sir;  and  I  shall  maintain 

it. 

Judge  Grier.  If  at  any  time  it  should  ap- 
pear that  the  defendant's  counsel  are  appealing 
to  the  jury  over  the  Court  we  will  raise  the  ques- 
tion then. 

Mb.  Ludlow.  Can  any  juror  go  into  that  bos 
without  stating  what  he  believes  in  regard  to  the 
Fugitive  Slave  Law  ?  You  would  annihilate  the 
Constitution  of  the  United  States  at  once,  and 
hazard  everything  in  allowing  that  juror  to  go 
into  the  jury  box  and  say — I  believe  the  law  to 
be  an  outrage  upon  humanity.  It  is  essential  to 
the  rights  of  the  United  States  that  every  juror 
who  goes  into  that  box  should  believe  the  law  to 
be  constitutional,  and  if  the  question  is  not  put, 
any  juror  may  take  his  seat  and  be  guilty  of  the 
same  traitorous  intention  in  heart  as  is  charged 
in  the  overt  act  upon  the  prisoners.  I  plant 
myself  upon  general  principles — that  the  Court 
are  bound  as  the  world  advances  in  civilzation,  and 
as  knowledge  is  diffused  among  the  people ;  to  be 
governed  by  the  circumstances  at  the  time,  and 
that  in  view  of  these  circumstances  now — in  view 
of  the  prevailing  excitement  on  the  subject,  and 
in  view  of  the  fact  that  perhaps  thousands  have 
said  the  law  is  not  binding  and  should  not  be 
carried  into  effect,  it  is  essential  to  the  proper 
trial  and  justice  of  this  case  that  the  last  ques- 
tion, above  are  others,  should  be  put  and  answered 
directly,  firmly  and  without  the  slightest  pre- 
varication. 

Mb.  Ashmead.  "Will  your  honor  permit  me 
to  hand  you  the  points  as  settled  by  Judge 
Curtis  in  Shadrach's  case? 

Judge  Kane — I  am  requested  by  his  Honor 
Judge  Grier.  to  make  a  single  remark  which  may 
explain  the  action  of  the  Court  on  the  question 
now  before  it.  We  consider  it  is  due  to  the  accused, 
and  due  also  to  the  purposes  of  justice,  that 
as  far  as  possible  every  juror  that  is  sworn  to 
pass  between  the  United  States  and  the  prisoner, 
shall  be  entirely  without  bias  of  any  sort  what- 
ever. The  offence  of  which  the  prisoner  is 
charged,  essentially  consists  of  two  elements, 
the  act,  and  the  intent  of  that  act.  And  a  juror 
who  has  formed  an  opinion,  as  to  his  par- 
ticipation in  a  certain  act,  or  as  to  the  intent 
which  would  be  deducible  from  that  act,  and 
already  passed  in  his  mind  upon  a  part  of  the 
general  proposition,  that  is  involved  in  a  ques- 
tion of  guilt  or  innocence.  In  that  view  of  the 
subject,  the  Court  has  modified  somewhat  the 
questions  which  have  been  proposed  by  the 
counsel  for  the  United  States. 

The  first  question  proposed  is  not  objected  to, 
as  to  the  conscientious  scruples  of  a  juror  as  to 
the  subject  of  capital  punishment.  The  second 
has  been  modified  to  read  thus  :  Have  you  formed 
or  expressed  any  opinion  relative  to  the  matter 
now  to  be  tried?  There  is  also  a  modification  as  j 
regards  the  third  question,  which  as  amended 
reads  thus  :  "  Are  you  sensible  of  any  such  pre-  ! 
judice  or  bias  therein  as  may  affect  your  action  , 


!  as  juror.    The  fourth  remains  without  change. 

The  fifth  also  remains  without  change.  The  sixth 
|  as  amended  reads  thus: — "  Have  you  formed  or 
expressed  an  opinion  that  the  law  of  the  United 
i  States,  known  as  the  Fugitive  Slave  Law  of  1850 
is  unconstitutional,  so  that  you  cannot  for  that 
I  reason  convict  a  person  f6r  forcible  resistance 
i  thereto  if  the  facts  alleged  in  the  indictment  are 
!  proved  and  the  Court  decide  the  statue  to  be 
■  constitutional. 

[The  questions  as  amended  and  allowed  by  the 
Court  read  thus, 

1.  Have  you  any  conscientious  scruples  upon 
:  the  subject  of  capital  punishment,  so  that  you 
:  would  not,  because  you  conscientiously  could  not 
'•  render  a  verdict  of  guilty,  death  being  the  pun- 
ishment though  the  evidence  required  such  a 

!  verdict  ? 

2.  Have  you  formed  or  expressed  any  opinion 
i  relative  to  the  matter  now  to  be  tried  ? 

3.  Are  you  sensible  of  any  such  prejudice  or 
bias  therein,  as  may  affect  your  action  as  a  juror  ? 

-±.  Have  you  formed  or  expressed  any  opinion 
;  as  to  the  guilt  or  innocence  of  the  accused,  or  of 
:  the  other  persons  alleged  to  have  participated 
'  with  him  in  the  offence  charged  against  him  in 
j  the  indictment  ? 

5.  Have  you  heard  anything  of  this  case  which 
;  has  induced  you  to  make  up  your  mind  as  to 

whether  the  offence  charged  in  the  indictment 
constitutes  treason  or  not? 

6.  Have  you  formed  an  opinion  that  the  law 
;  of  the  United  States,  known  as  the  Fugitive  Slave 

Law  of  1850,  is  unconstitutional,  so  that  you 
!  cannot  for  that  reason,  convict  a  person  indicted 
;  for  a  forcible  resistance  thereto,  if  the  facts 
I  alleged  in  the  indictment  are  proved  and  the 
Court  hold  the  statute  to  be  constitutional  ?] 

David  George  was  called  and  answered. 
Clerk.  Juror  look  upon  the  prisoner.  Prisoner 
look  upon  the  Juror.    How  say  you  prisoner, 
challenged  or  not  challenged? 
Prisoner — Not  challenged. 
Mb.  Ludlow — I  will  ask  that  this  juror  be  set 
aside  for  the  present. 

Jonathan  Wainwright  was  called  and  answered. 
Clerk — Juror  look  upon  the  prisoner.  Pri- 
soner look  upon  the  juror.    How  say  you  pri- 
!  soner,  challenged  or  not  challenged? 
Prisoner. — Not  challenged." 
Mb.  Ludlow. — "  We  ask  that  this  Juror  be  set 
i  aside  for  the  present.'' 

Erskine  Hazard  was  called  and  answered 
Clerk.  —    Juror  look  upon    the  prisoner. 
Prisoner  look  upon  the  Juror.    How  say  you 
j  Prisoner?    Challenged  or  not  challenged  ?'' 
Mb.  Cutler. — li  Swear  the  Juror." 
Juror. — "  I  affirm/'" 

Judge   Grier. — '■  Are   you  conscientiously 
scrupulous  against  taking  an  oath  ?" 
Juror. — ■•  I  am." 
The  Juror  affirmed. 

Mr.  Read. — "We  will  put  some  of  the  ques- 
tions may  it  please  your  honors." 

Judge  Grier. — "  Let  the  defendant's  counsel 
have  a  copy  of  the  questions." 


24 


TREASON  CASES. 


Mr.  Ludlow. — "  Yes  sir,  I  will  have  a  copy  of 
them  made." 

Mr.  Read. — "  We  do  not  want  to  occupy  the 
time  of  the  Court  or  Jury  in  asking  the  whole  of 
the  questions,  therefore  shall  only  use  some  of 
them." 

Judge  Grier. — "You  can  put  any,  or  omit 
any,  as  you  please." 

Mr.  Read. — "Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment." 

Juror. — "  I  am  not  aware  that  I  have." 

Mr.  Read. — "The  prisoner  challenges  the 
Juror." 

Judge  Kane. — "Peremptorily?" 

Mr.  Read. — "We  challenge  peremptorily." 

John  Miller  was  called  and  answered. 

Clerk. — "  Juror  look  upon  the  Prisoner. 
Prisoner  look  upon  the  Juror.  How  say  you 
Prisoner  ?    Challenged  or  not  challenged  ?" 

Mr.  Cuyler. — '  'Swear  the  Juror  if  you  please." 

The  Juror  is  sworn. 

Mr.  Cuyler. — "  Have  you  formed  or  expressed 
any  opinion  sir,  as  to  the  guilt  or  innocence  of 
the  prisoner." 

Juror. — "  I  have  not." 

Mr.  Cuyler. — "  Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 
other  persons  alleged  to  have  participated  with 
him  in  the  offence  charged  against  them,  in  the 
indictment." 

Juror. — "  I  have  not." 

The  prisoner  challenges  the  Juror] 

Jacob  Hammer  was  called. 

Clerk. — He  is  excused  for  two  weeks. 

Ephraim  Fenton  called  and  answered. 

Clerk. — Do  you  desire  him  to  be  sworn? 

Mr.  Read. — No  sir. 

Clerk. — Juror  look  upon  the  Prisoner.  Pri- 
soner, look  upon  the  Juror.  How  say  you 
prisoner  ?    Challenged  or  not  challenged  ? 

Prisoner. — Not  challenged. 

Mr.  Ludlow. — We  ask  that  this  juror  be  set 
aside  for  the  present. 

Robert  F.  Walsh  was  called  and  answered. 

Mr.  Cuyler. — Swear  the  juror 

The  juror  was  sworn  on  his  voir  dire. 

Mr.  Cuyler. — Have  you  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  be  tried. 

Juror. — I  read  the  newspaper  accounts  at  the 
time,  and  came  to  my  own  conclusion  about 
them. 

Mr.  Cuyler. — Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  this  indictment- 

Juror. — I  had  come  to  my  own  conclusion 
about  it  at  the  time. 

Mr.  Stevens.  We  challenge  for  cause.  He 
says  he  had  come  to  a  conclusion  at  the  time,  in 
answer  to  both  the  questions. 

Mr.  Cooper.  If  the  Court  please,  I  doubt 
whether  there  has  been  developed  by  the  exami- 
nation of  the  juror  sufficient  to  authorize  a  chal- 
lenge for  cause  on  the  part  of  the  prisoner.  He 


states  that  from  the  newspaper  accounts  of  the 
case  he  has  come  to  his  own  conclusions,  and  he 
answers  in  reference  to  both  the  questions  in  the 
same  way.  Now,  I  think  in  the  trial  of  Burr,  it 
was  decided  that  they  must  have  formed  and 
expressed  an  opinion  in  order  to  entitle  the  de- 
fendants to  a  challenge  for  cause.  If  every  juror 
who  has  come  to  a  conclusion  in  his  own  mind, 
upon  statements  made  in  the  newspapers,  is  to  be 
excluded,  we  shall  be  scarcely  able  to  attain  to 
the  desired  object,  I  trust,  on  both  sides,  of 
securing  an  impartial  panel.  Almost  every  in- 
telligent man  has  read  an  account  of  this  pro- 
ceeding given  by  the  newspapers,  and  has 
undoubtedly  formed  some  conclusion  in  his  own 
mind.  The  human  mind  is  so  constituted,  that 
facts  can  scarcely  be  brought  to  bear  upon  it  that 
it  does  not  conclude  either  pro  or  con  in  regard 
to  it.  Now  I  understand  that  it  is  not  enough 
that  lie  should  have  read  an  account  and  come  to 
a  conclusion  upon  it  in  his  own  mind,  but  that 
he  must  have  expressed  that  conclusion.  And  it 
seems  to  me,  if  your  honour  please,  that  there  is 
a  difference  between  the  formation  and  expres- 
sion of  an  opinion  by  a  juror,  if  he  has  formed  an 
opinion  without  having  expressed  it.  He  is  not 
committed  as  far  as  language  is  concerned.  He 
is  not  so  far  committed  in  one  case  as  in  the 
other,  when  he  has  expressed  it.  That  pride 
and  prejudice,  which  insensibly  wre  all  possess, 
is  enlisted  in  requiring  that  the  opinion  expressed 
should  be  lived  up  to.  I  think  if  my  memory 
serves  me  right,  the  same  distinction  was  made 
in  the  trial  of  Aaron  Burr,  in  which  Judge  Chase 
came  to  a  similar  conclusion  under  his  presi- 
dency, in  the  matter.  I  have  a  memorandum,  if 
your  honours  please,  that  will  assist  me  somewhat 
in  this  matter." 

Judge  Kane.    "Wait  a  moment." 

Mr.  Cooper.  "  If  the  Court  has  decided,  it  is 
only  in  reference  to  a  single  fact,  in  reference  to 
the  opinion  of  Judge  Chase  in  the  trial  of  Calen- 
der. A  Mr.  Basset  was  called  as  a  juror,  and  a 
question  similar  to  that  was  put  to  him." 

Judge  Kane.  "  I  think  it  was  in  Robert's  case. 
I  may  be  wrong. 

Mr.  Cooper.  "  It  was  in  the  case  of  Calender, 
tried  for  libel.  Mr.  Basset  was  called,  and  a 
similar  question  proposed.  The  indictment  did 
charge  upon  the  defendant  the  publication  of  a 
malicious  libel.  Mr.  Basset  answered  that  he 
had  made  up  his  mind  in  relation  to  the  facts, 
and  that  the  book  which  was  entitled  "The 
Prospect  before  us,"  was  a  libel,  but  he  did  not 
know  who  was  the  author,  which  wrould  have  been 
a  subject  of  easy  proof.  And  though  the  decision 
was  found  fault  with,  and  brought  into  the 
Senate,  it  was  supported  there  by  a  majority  of 
three  or  four  to  one.  It  was  afterwards  referred 
to  in  Burr's  trial,  by  application  of  Chief  Justice 
Marshall.  I  do  think  that  this  is  as  near  as 
anything  that  can  be  found  by  way  of  a  pre- 
cedent. 

Mr.  Read.  We  have  only  used  the  form  of 
the  question  put  by  the  United  States.  We  take 
the  question  as  deliberately  drawn  up  by  these 
gentlemen,  and  we  repeat  this  question  to  the 
jurors.    I  do  not  see  what  more  could  be  done. 


UNITED  STATES  V.  HANWAY. 


25 


They  have  formed  it  upon  deliberation,  and 
taken  from  Judge  Baldwin,  as  in  the  case  of  the 
United  States  against  Porter,  which  is  the  latest 
decision  upon  the  subject.  We  very  little  care 
about  it  one  way  or  the  other. 

Judge  Grier.  The  question  is,  whether  the 
answer  given  by  the  juror  to  this  question,  or 
both  of  "them,  is  sufficient  to  show  that  he  is 
unfit  for  a  juror,  and  whether  it  shows  a  bias  or 
not.  We  are  of  opinion  that  as  it  stands  it  does 
not.  and  that  it  shows  the  necessity  in  permitting 
such  a  general  question,  to  have  others  more 
specific  ;  giving  them,  as  has  been  truly  said,  the 
character  of  "a  nest  of  questions,"  where  the 
first  may  be  said  to  contain  all  the  others. 
We  do  not  expunge  them  for  that  reason.  If 
a  question  is  very  general,  it  may  be  answered 
in  such  a  way  as  that  the  Court  could  not  say 
whether  it  was  sufficient  to  exclude  a  juror  or 
not.  For  instance,  in  these  times,  when  every 
thing  is  published,  from  one  end  of  the  world  to 
the  other,  there  is  no  great  crime  whatever  that 
comes  before  the  cognizance  of  the  Court,  that 
is  not  immediately  abroad,  and  the  history  of  it 
read  by  every  man  before  the  trial  comes  on.  I 
suppose  there  is  no  one  in  all  that  number  who 
could  not  with  truth  say,  I  read  the  papers  at 
the  time,  and  passed  my  own  conclusions  upon  it. 
Would  it  not  be  true  that  he  had  formed  his  own 
conclusion  'that  such  conduct  was  unjustifiable 
and  illegal.  Is  it  not  so  in  the  case  of  murder,  or 
any  thing  else,  that  we  come  to  the  conclusion, 
that  persons  who  are  guilty  of  it  ought  to  be 
punished  ?  That  is  a  conclusion  almost  every 
mind  would  form.  And  one  who  had  formed 
such  a  conclusion  might  have  truly  answered 
to  the  question,  that  he  had  formed  an  opinion. 
And  yet,  if  such  were  the  case,  it  would  put 
an  end  to  all  jury  trials.  For  we  could 
not  find  men.  unless  we  took  those  who  were 
blind,  or  could  not  read  perhaps.  Or  else  we 
should  have  to  go  to  some  corner  of  the  earth 
where  persons  did  not  see  papers,  or  read  the 
daily  news.  Before  the  Court  can  exclude  this 
gentleman  for  cause,  we  shall  consider  it  neces- 
sary to  ask  some  further  questions  with  regard 
to  what  he  means  by  this.  We  wish  to  know  if 
he  has  formed  his  conclusive  opinion,  that  the 
transaction  for  which  this  defendant  is  upon 
trial,  or  his  participation  in  it,  was  treasonable 
against  the  United  States  government.  He  has 
then  formed  an  opinion  which  affects  a  most 
important  matter  in  this  case,  which  is,  the 
intention  of  the  defendant.  If  he  has  formed  an 
opinion  that  this  defendant  is  one  of  the  persons 
who  was  guilty  upon  that  occasion,  or  that  he  was 
not,  that  would  be  sufficient  ground  of  challenge. 
But  unless  he  explains  it,  we  must  arrive  at  the 
determination,  that  it  is  a  reply  that  might  be 
made  by  every  juror,  and  we  might  not  get  a  panel 
for  two  years.  The 'juror  will  be  required  to  an- 
swer some  other  questions  by  way  of  explanation. 

Mr.  Stevens  .  We  ha ve  heard  the  opinion  of  the 
Court  now,  and  we  will  ask  some  more  questions. 

Judge  Grier.  Have  you  formed  an  opinion 
as  to  whether  the  persons  engaged  in  this  trans- 
action are  indictable  for  treason  :i 

Juror.    I  read  his  honor's  opinion  in  your 


charge  to  the  Grand  Jury,  and  I  thought  it  sus- 
tained the  cause  of  justice. 

Judge  Grier.  We  wish  you  to  give  us  a 
direct  answer,  yea  or  nay. 

Juror.    I  think  the  offence  treason. 

Judge  Grier.  You  have  made  up  your  mind? 
have  you  ever  expressed  such  an  opinion  ? 

Juror.    I  do  not  remember  that  I  have. 

Judge  Grier.  Have  you  formed  such  a  con- 
clusion in  your  mind  that  the  offence  at  that 
time  was  high  treason  ? 

Juror.    I  did,  sir. 

Judge  Grier.    That  is  sufficient. 

James  Cowdon  was  called,  and  answered. 

Clerk.  Juror,  look  upon  the  prisoner;  prisoner, 
look  upon  the  juror.  How  say  you  prisoner  ? 
Challenged  or  not  challenged  ? 

Prisoner.    Not  challenged. 

Mr.  Ludlow.  It  is  requested  that  the  Juror 
be  set  aside  for  the  present. 

Robert  Elliot  was  called  and  answered. 

Clerk.  Juror,  look  upon  the  prisoner.  Pri- 
soner, look  upon  the  juror.  How  say  you  priso- 
ner ?  Challenged  or  not  challenged  ? 

Prisoner.    Not  challenged. 

Mr.  Ashmead.    Swear  the  juror. 

Juror.    I  affirm. 

The  juror  was  affirmed  on  his  voir  dire. 

Mr.  Ludlow.  Have  you  any  conscientious 
scruples  upon  the  subject  of  capital  punishment, 
so  that  you  would  not,  because  you  could  not, 
render  a  verdict  of  guilty,  death  being  the  pun- 
ishment, though  the  evidence  required  such  a 
verdict. 

Juror.    No,  sir,  I  have  not. 

Mr.  Ludlow.  Have  you  formed  or  expressed 
any  opinion  in  relation  to  the  matter  now  before 
the  court  to  be  tried. 

Juror.    No,  sir. 

Mr.  Ludlow.  Are  you  sensible  of  any  such 
prejudice  or  bias  therein,  as  may  affect  your 
action  as  juror  ? 

Juror.    I  do  not  think  that  I  have. 

Mr.  Ludlow.  Have  you  formed  or  expressed 
any  opinion,  as  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence,  charged 
against  him  in  the  indictment. 

Juror.    Not  to  my  knowledge,  sir. 

Mr.  Ludlow.  Have  you  heard  any  thing  of 
this  case  which  has  induced  you  to  make  up  your 
mind  as  to  whether  the  offence  charged  in  the 
indictment  constitutes  treason  or  not  ? 

Juror.    No,  sir. 

Mr.  Ludlow.  Have  you  formed  an  opinion 
that  the  Law  of  the  United  States,  known  as  the 
Fugitive  Slave  Law  of  1850,  is  unconstitutional, 
so  that  you  cannot  for  that  reason  convict  a  per- 
son indicted  for  a  forcible  resistance  thereto,  if 
the  facts  alleged  in  the  indictment  are  proved, 
and  the  Court  holds  the  statute  to  be  constitu- 
tional. 

Juror.    No,  sir,  I  have  not. 
Mr.  Ashmead.    Let  him  be  sworn. 
The  juroris  sworn  and  takes  his  seat  in  the  box. 
John  Reynolds  was  called,  and  answered. 
Mr.  Reynolds  was  affirmed  on  his  voir  dire. 
Mr.  Clyler.    Have  you  formed  or  expressed 


26 


TREASON  CASES. 


any  opinion  as  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment  ? 

Juror.  I  have  said  something  like  that,  where 
the  matter  was  a  subject  of  conversation. 

Judge  Grier  It  depends  a  great  deal  upon 
any  expression  of  opinion.  It  may  be  a  more 
proper  reply  to  a  subsequent  question. 

Juror.  I  have  expressed  an  opinion  that  the 
white  persons,  if  there  were 'any  engaged  in  it, 
were  more  culpable  than  the  absconding  slaves, 
who  were  led  on  by  them. 

Mr.  Cuyler.  Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment  ? 

Juror.  I  cannot  say  that  I  have  formed  an  ab- 
solute opinion  about  it. 

Mr.  Stevens.  He  has  not  expressed  one. 

Juror.  I  have  not  that  I  know  of.  Not  abso- 
lutely. I  might  have  conditionally,  that  if  they 
were  guilty. 

Mr.  Cuyler.  Have  you  heard  any  thing  of 
this  case  which  has  induced  you  to  make  up 
your  mind  as  to  whether  the  offence  charged  in 
the  indictment  constitutes  treason  or  not  ? 

Juror.  It  is  in  my  mind  a  matter  of  doubt. 
If  it  is  not  treason,  I  do  not  see  how  treason 
against  the  United  States  can  be  levied.  My  rea- 
son for  saying  so  is,  that  resistance  to  the  laws 
would  not  be  permitted  to  go  to  such  an  extent, 
as  to  assemble  in  what  would  be  a  warlike  ap- 
pearance. It  would  not  be  suffered,  but  I  pre- 
sume it  would  be  resisted  before  it  presented  so 
perilous  an  aspect. 

Judge  Grier.  Do  you  say  that  you  have  not 
formed  any  opinion  whatever  on  this  subject, 
either  one  way  or  the  other  ? 

Juror.  It  would  depend  upon  the  circum- 
stances developed  in  the  testimony  upon  the 
trial. 

Mr.  Cuyler.  Have  you  formed  any  opinion 
from  what  you  have  seen? 

Juror.  I  have  seen  nothing  but  what  I  have 
read. 

Mr.  Cuyler.  Have  you  formed  any  opinion 
from  what  you  have  read  ? 

Juror.  I  say  that  if  this  be  not  treason  I  do 
not  see  how  it  can  be  committed  against  the  United 
States. 

Judge  Grier.  You  are  asked  to  give  a  direct 
answer. 

Mr.  Stevens.  I  submit  to  your  Honor  that  he 
is  not  qualified  to  serve  as  a  juror. 

Mr.  Ashmead.  I  cannot  see  any  difficulty  here 
and  I  should  like  to  be  understood  upon  this  point. 
He  is  asked  if  he  has  formed  an  opinion  as  to 
whether  this  is  treason  or  not ;  and  his  answer  is 
"I  do  not  know  whether  it  was  or  not."  He  has  not 
made  up  his  mind  upon  the  subject,  "  But  if  this 
was  not  treason  I  do  not  know  what  constitutes 
treason."  I  do  not  see  how  this  opinion  is  an  ob- 
jection. You  see  in  the  paper  that  a  person  has 
stolen  an  article  from  another  man's  house,  and 
when  you  read  you  form  in  your  own  mind  the 
opinion  that  he  committed  larceny.    When  you 


read  an  account  of  a  person's  having  been  shot, 
you  necessarily  arrive  at  the  conclusion  that 
the  offence  is  murder.  Here  the  juror  makes 
up  his  mind  as  to  treason.  The  question  is, — 
Has  he  so  armed  his  mind,  that  he  is  not  dis- 
posed to  take  the  lav/  from  the  Court  as  present- 
ed by  it,  or,  whether  he  will  act  upon  his  own 
judgment  in  opposition  to  it  '<  Let  us  look  at 
the  irregularity,  which  has  been  so  prepared  as 
to  bring  out  a  point  like  this.  It  is  a  loose  one. 
I  use  it  for  analogous  purposes.  It  would  not 
be  right  to  put  the  question  ;  "  have  you  formed 
an  opinion  as  to  whether  it  is  unconstitutional 
or  not  ?"  It  does  not  matter  a  straw.  The  ques- 
tion, I  say  again,  is, — Have  you  so  formed  an 
opinion,  that  if  the  Court  instructs  you  to  the 
contrary,  you  will  still  hold  to  it  ?  It  is  this  way 
in  reference  to  the  juror.  He  has  read  an  ac- 
count, and  he  thinks  it  is  such  an  offence.  He 
is  not  certain.  But  if  he  has  formed  an  opinion 
that  shall  interfere  with  his  judgment  against 
the  law  of  the  Court,  I  do  say  that  he  ought  to 
be  challenged.  There  is  another  point  which  I 
wish  to  mention.  This  is  a  subject  upon  which 
almost  every  man,  woman  and  child,  has  formed 
an  opinion.  A  simple  opinion,  by  the  witness 
that  a  certain  thing  amounts  to  a  certain  offence, 
does  not  declare  an  expression  of  it,  neither  does 
it  affirm  that  he  will  not  take  the  rule  of  the 
Court  upon  it. 

Judge  Grier.  I  do  not  understand  the  wit- 
ness to  say  that  he  has  formed  an  opinion,  but 
that  he  is  unsettled. 

Mr.  Stevens.  Perhaps  your  Honor  does  not 
hear  the  latter  part  of  the  answer,  "but  that  if 
this  is  not  treason,  I  do  not  see  how  it  can  be 
perpetrated  against  the  United  States." 

Judge  Kane.  By  the  levying  of  war,  because 
he  knows  that  a  large  army  would  not  be  allowed 
to  assemble. 

Judge  Grier.  The  distinction  stated  by  the 
Court,  which  makes  this  case  to  differ  from 
others,  is,  that  a  person  who  has  made  up 
his  mind,  that  this  transaction  was  treason,  has 
thereby  passed  upon  a  most  material  fact;  to 
wit,  the  intention  of  the  parties  engaged  in 
it. 

Juror.  I  say,  that  it  is  doubtful  in  my  mind, 
whether  the  offence  charged  against  these  parties 
is  treason  or  not;  but  if  it  be  not  treason,  I  do 
not  see  how  that  crime  can  be  committed  against 
the  government  of  the  United  States. 

Mr.  Stevens.  That  is  the  answer  the  juror 
gave  before.  If  he  says  that,  I  don't  see  that  it  is 
possible  for  a  man  to  make  up  his  mind  more 
strongly  upon  a  subject,  when  he  knows  that 
there  is  treason  in  the  United  States,  and  your 
Honors  will  tell  him  that  it  can  be  committed 
And  with  this  opinion  he  must  entertain  a  bias 
which  the  Court  do  not  admit. 

Mr.  Cooper.  This  may  turn .  out  to  be  a 
matter  of  a  great  deal  of  importance  in  the  pro- 
gress of  this  trial,  as  to  whether  the  opinion 
expressed  by  the  witness,  is  cause  of  challenge 
or  not.  Now,  I  confess  I  cannot  see  in  the  light 
that  the  counsel  for  the  prisoner  see  it.  Is  the 
witness  to  be  excluded  for  having  formed  a  cor- 
rect opinion  in  relation  to  the  matter?    If,  in 


UNITED  STATES  V.  HAXTVAY. 


view  of  the  facts  that  are  presupposed  in  this  , 
case,  he  were  to  say  he  had  made  up  his  mind  it 
was  not  treason,  and  the  Court  being  clearly 
satisfied  from  the  facts  charged  in  the  indictment, 
when  proved  that  it  is  not  made  out  treason, 
where  would  be  the  ground  of  challenge,  then, 
on  the  other  side  ?  If  he  has  made  up  his  mind 
correctly,  without  any  relation  to  the  prisoner's  j 
guilt,  am  I  to  be  told  that  it  is  sufficient  ground 
for  a  challenge.  If  it  be  so,  as  I  suggested,  it 
will  take  us  a  long  period  before  we  arrive  at  a 
panel  of  impartial  jurors,  and  who  are  without 
bias.  Now,  I  think  it  is  not  enough  that  the 
juror  has  said  that,  from  the  evidence,  furnished 
by  rumor,  that  he  regards  the  offence  treason, 
I  do  not  suppose  it  is  enough  to  authorize  a 
challenge.  But  if  in  addition  to  that  you  con- 
nect the  prisoner  with  it,  and  the  remark  is  made 
as  to  his  guilt  or  innocence,  then  it  is,  of  course, 
cause  for  challenge.  The  juror,  in  this  particular 
case,  if  I  understand  him,  said,  that  "he  was 
open  to  receive  and  act  upon  the  instructions 
given  by  the  Court  upon  the  law."  If  that  be  so, 
in  addition  to  the  other  reasons  I  have  suggested, 
I  cannot  see  why  he  should  be  excluded  ;  and  it 
seems  to  me  that  there  is  a  necessity  that  we 
should  have  this  question  settled  here,  as  we 
shall  have  the  same  questions  propounded,  and 
the  same  answers,  I  expect,  from  the  gentlemen 
of  the  jury  who  are  in  the  habit  of  reading  the 
newspapers,  as  I  presume  every  one  of  them  is. 
It  therefore  appears  to  me  that  this  should  be 
settled  here.  I  do  not  think  that,  having  made 
up  a  correct  judgment  as  to  whether  a  charge  in 
the  indictment  is  treason  or  not,  is  cause  for  a 
challenge. 

Mr.  Read.  "I  consider  this  to  be  only  one 
side  of  the  question,  and  if  the  answer  was 
against  us,  we  should  never  have  the  benefit  of 
the  11  pro"  and  "core."  The  question  might  have 
been  put  only  in  one  way.  But  what  I  under- 
stand the  intention  of  the  Court  is,  to  get  men 
that  will  stand  untainted  by  mere  rumors.  I 
have  no  objection  to  Mr.  B.eynolds,  but  he  has 
distinctly  asserted  in  effect,  that  he  has  made  up 
his  mind  that  it  is  treason.  That  is  the  result. 
There  is  another  matter  in  addition  to  this,  Sir, 
which  bears  upon  the  prisoner.  He  has  not  only 
formed  his  opinion,  if  I  understand  him  by  his 
evidence,  that  it  is  not  expected  (to  cite  Lord 
Coke,  and  which  authority  I  dont  believe  he  has 
locked  at  of  late,)  "  a  standing  army  would  be 
levied,"  by  any  person  in  the  United  States. 
Yet  still  he  has  formed  an  opinion  that  if  there 
can  be  treason,  this  is  treason.  He  has  also 
gone  a  step  further,  and  shows  a  bias  and  pre- 
judice against  the  prisoner.  Therefore,  the 
question  naturally  arises,  whether  that  very  ex- 
pression is  not  a  bias  or  prejudice  against  the 
prisoner  on  trial.  It  appears  to  me  therefore, 
that  upon  the  two  opinions  given,  we  are  entitled 
to  a  challenge ;  for  the  course  we  have  taken  was 
proposed  by  the  U.  S.,  and  the  answers  grew 
out  of  those  propositions." 

Mr.  Ashmead.  "Your  honor  understands 
him  to  say,  that  the  white  men  were  guilty,  if 
there  is  guilt.    I  wish  this  to  be  understood." 

Judge  Kane.    "  The  Court  is  of  opinion,  that  j 


I  the  witness  is  not  disqualified  for  sitting  as  a 
j  juror,  (though  he  has  formed  an  opinion  of  the 
law,)  if  wheu  instructed  by  the  Court,  that  that 
opinion  is  erroneous,  that  opinion  will  cease  to 
influence  him  in  his  action  as  a  juror.  If  the 
juror  upon  being  asked  the  question,  shall  say, 
that  he  has  formed  such  an  opinion  upon  the 
|  law,  that  it  will  influence  his  action  as  a  juror 
notwithstanding  that  the  Court  may  instruct 
him  otherwise,  the  Court  would  regard  it  as  good 
cause  of  challenge." 

Judge  Grier.  I  would  observe,  that  he  has 
not  made  up  his  mind  as  to  law.  but  to  a  certain 
inference  that  might  arise  or  might  not,  it  does 
not  affect  his  competency.  It  is  a  mere  sort  of 
consequence  that  might  arise,  it  does  not  alter  the 
opinion.  We  do  not  construe  his  opinion  a3 
to  the  guilt  of  the  white  men,  as  a  prejudice 
against  the  defendant  at  all. 

The  prisoner  challenges  the  juror. 
Mr.  Penrose.  If  your  honor  please,  one  of 
the  jurors  is  an  associate  judge  of  the  county  of 
Cumberland,  and  he  has  requested  me  to  mention 
that  he  is  required  by  law,  to  attend,  in  the 
month  of  December,  to  hold  an  Orphans'  Court 
in  that  county. 

Judge  Grier.    What  is  the  juror's  name  ? 
Mr.  Penrose.    John  Rupp. 
Judge  Grier.    If  he  is  called  on  this  case  and 
serves,  we  will  discharge  him  from  attendance 
to  the  rest  of  his  duties. 

John  Horn  was  called,  and  answered. 
Mr.  Read.    Swear  the  juror. 
Clerk.    You  do  swear  that  you  will  true 
answers  make  to  such  questions  as  shall  be  put 
to  you,  touching  your  competency  to  sit  as  juror 
on  this  cause  ? 

Mr.  PvEad.  Have  you  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  be  tried  ? 

Juror.  If  the  word  matter  embraces  the 
question  of  treason,  I  have. 

Mr.  Read.  Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment  ? 

Juror.  I  have  formed  an  opinion  that  the  act, 
does  not  constitute  treason,  and  have  expressed 
it. 

Mr.  Stevens.  Does  your  Honor  think  that 
he  would  change  his  opinion  if  directed  by  the 
Court  ? 

Juror.  If  the  Court  made  it  clear  to  me  to 
be  different  from  my  present  view  of  the  law,  I 
would  change  my  opinion. 

Mr.  Read.    We  do  not  challenge,  sir. 
Judge  Grier.    I  am  not  satisfied  with  his  last 
answer. 

Mr.  Stevens.  We  have  no  cause  for  challenge. 
Mr.  Ashmead.  If  I  understand  the  answer 
of  this  witness,  then  we  have  no  peremptory 
challenges,  and  can  set  him  aside  until  the  panel 
is  gone  through.  I  think  there  is  reason  on 
the  part  of  the  Government.  If  I  understand 
him,  he  says  he  "  thinks  it  is  not  treason,  and  he 
says  his  mind  is  so  settled  that  it  would  not  be 
subject  to  any  change  by  the  Court." 
Juror.    I  do  not  say  so ;  I  mean  the  subject 


23 


TREASON  CASES. 


I  do  not  speak  with  regard  to  the  individual  at 
all. 

Mr.  Ashmead.  Mr.  Horn,  what  was  your 
answer  in  reference  to  the  question  put  to  you, 
as  to  whether  the  Court  could  change  your 
opinion  as  to  treason.  I  think,  if  your  Honor 
please,  a  man  who  asserts  that  he  has  made  up 
nis  mind  on  a  question  of  guilt,  is  biassed  and 
prejudiced,  and  we  challenge  him  for  cause. 

Judge  Grier.    The  juror  can  withdraw. 

James  Wilson  called  and  answered. 

Clerk.  Juror,  look  upon  the  prisoner.  Pri- 
soner, look  upon  the  juror.  How  say  you,  pri- 
soner, challenged  or  not  challenged  ? 

Prisoner.    Not  challenged. 

Mr.  Ashmead.    Swear  the  juror. 

The  juror  is  sworn  on  his  voir  dire. 

Mr.  Ludlow.  Have  you  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  be 
tried  ? 

Juror.    Not  that  I  am  aware  of. 

Mr.  Ludlow.  Are  you  sensible  of  any  such 
prejudice  or  bias  as  may  affect  your  action  as 
juror? 

Juror.    I  think  not. 

Mr.  Ludlow.  Have  yon  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 
accused  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment  ? 

Juror.    I  am  not  sensible  that  I  have. 

Mr.  Ludlow.  Have  you  heard  anything  of 
this  case  which  has  induced  you  to  make  up 
your  mind  as  to  whether  the  offence  charged  in 
the  indictment  constitutes  treason  or  not  ? 

Juror.    No,  I  think  not. 

Mr.  Ludlow.  Have  you  formed  an  opinion 
that  the  law  of  the  United  States,  known  as  the 
"  Fugitive  Slave  Law  of  1850,"  is  unconstitutional, 
so  that  you  cannot,  for  that  reason,  convict  a 
person  indicted  for  a  forcible  resistance  thereto, 
if  the  facts  alleged  in  the  indictment  are  proved, 
and  the  Court  hold  the  statute  to  be  constitu- 
tional ? 

Juror.  As  far  as  I  am  a  judge,  I  believe  it 
is  constitutional. 

Mr.  Ashmead.  We  have  no  objection  to  the 
juror. 

Judge  Grier.  You  are  not  asked  to  say, 
whether  it  is  or  not,  but  whether  you  have 
formed  such  an  opinion  on  it,  that  you  will  not 
be  convinced  by  the  Court. 

Juror.    I  have  formed  no  such  opinion. 

Mr.  Ashmead.    Let  the  juror  be  sworn. 

Juror  sworn,  and  takes  his  seat  in  the  box. 

John  Krause  is  called  and  answered. 

Mr.  Cutler.  Swear  the  juror,  if  you 
please. 

The  juror  is  sworn  on  his  voir  dire. 

Mr.  Cutler.  Have  you  formed,  or  expressed 
any  opinion  as  to  guilt  or  innocence  of  the  ac- 
cused, or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment  ? 

Juror.    No,  sir. 

Mr.  Cutler.  Have  you  heard  anything  of 
this  case,  which  has  induced  you  to  make  up 


your  mind  as  to  whether  the  offence  charged  in 
the  indictment,  constitutes  treason  or  not  ? 

Juror.  I  have  not  expressed  an  opinion,  and 
should  be  governed  by  the  testimony  in  the  case. 

Mr.  Cutler.  Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment  ? 

Juror.  I  think  I  have  not  expressed  an 
opinion.  Another  matter  in  the  first  question  is, 
I  am  conscientiously  scrupulous  about  the  pun- 
ishment of  death. 

Judge  Kane.    Put  the  first  question  to  him. 

Juror.  It  would  be  very  painful  for  me 
to  serve,  when  I  should  be  required  to  render 
such  a  verdict. 

Judge  Grier.  That  may  be,  but  is  the  con- 
scientious scruple  such,  that  you  would  not  find 
him  guilty  if  it  were  proved  to  be  so  in  law  and 
fact? 

Juror.  I  would  like  to  excuse  myself  on  that 
account,  but  I  have  not  yet  answered  the  ques- 
tion. 

Judge  Grier.  We  are  anticipating  your 
answer.  You  have  not  yet  said  whether  you  are 
biased  or  not. 

Mr.  Stevens.  It  was  at  his  own  suggestion, 
the  question  was  put  to  him.    Not  challenged. 

Mr.  Ashmead.    He  may  be  set  aside. 

Samuel  Small  called  and  answered. 

Mr.  Read.    Swear  the  juror. 

The  juror  is  sworn  on  his  voir  dire. 

Mr.  Read.  Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  m  the  indictment  ? 

Juror.    I  have  not. 

Mr.  Read.    Have  you  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  be  tried. 
Juror.    No,  sir. 

Mr.  Read.  Are  you  sensible  of  any  such 
prejudice  or  bias  therein,  as  may  affect  your  ac- 
tion as  juror. 

Juror.  No. 

Mr.  Read.  Have  you  read  anything  of  this 
case  which  has  induced  you  to  make  up  your 
mind  as  to  whether  the  offence  charged  in  the 
indictment  constitutes  treason  or  not  ? 

Juror.  I  have  formed  an  opinion,  taken  from 
the  newspaper  reports. 

Mr.  Read.    What  is  it  ? 

Mr.  Stevens.  We  need  not  go  any  farther,  I 
suppose. 

Juror.  It  is- not  so  absolutely,  that  it  might 
not  be  changed  by  the  direction  of  the  Court. 

Judge  Grier.  It  is  a  notion,  but  have  you 
expressed  it  ? 

Juror.  I  have  expressed  it,  but  it  is  taken 
from  the  accounts  I  have  read  in  the  papers  in 
regard  to  the  question,  whether  it  be  treason  or 
not. 

Mr.  Stevens.  We  challenge  him  for  cause. 
Having  formed  and  expressed  an  opinion,*  we  do 
not  think  it  necessary  to  ask  him  anything  else. 

Mr.  Ashmead.    Is  that  within  the  rule  ?  I 


UNITED  STATES  V.  HANWAY. 


29 


understand  him  to  say,  he  has  formed  an  opinion 
whether  it  is  treason  or  not,  but  not  so  formed 
it,  that  it  is  not  subject  to  the  direction  of  the 
Court  as  to  law. 

Ma.  Cooper.  Will  you  repeat -whether  you  said 
your  opinion  would  not  be  subject  to  change,  if 
the  Court  instimcted  you  that  it  was  erroneous? 

Juror.  I  said  from  the  newspaper  reports  that  I 
have  read,  I  thought  it  did  not  constitute  trea-  j 
son.  I  was  under  that  impression.  That  opinion  ! 
may  be  changed  by  the  direction  the  Court  may  J 
give  in  the  case. 

Mr.  Ashmead.  May  be,  or  would  be  ? 

Juror.  May  be  of  course,  and  would  be  also, 
I  do  not  see  any  difference. 

Mr.  Stevens.  We  do  not  object,  because  we 
may  find  them  all  in  that  condition  ;  perhaps  we 
shall. 

Judge  Grier.  Ask  him  any  other  question. 

Mr.  Ludlow.  We  ask  that  he  may  be  set  aside. 

Caleb  Cope  is  called,  but  does  not  answer. 

Judge  Grier.  Call  his  name,  the  gentleman 
lives  in  town. 

Crier.  ''Caleb  Cope!"  "Caleb  Cope:;!  The 
juror  does  not  answer. 

Judge  Grier.  Mark  him  among  those  who  are 
fined. 

Thomas  Connelly  was  called  and  answered. 

Clerk.  Juror,  look  upon  the  prisoner.  Pri- 
soner, look  upon  the  juror.  How  say  you  pri- 
soner, challenged  or  not  challenged  ? 

Prisoner.  Not  challenged. 

Mr.  Ashmead.  Swear  the  juror. 

Juror  is  sworn  on  his  voir  dire. 

Mr.  Ludlow.  Have  you  any  conscientious 
scruples  upon  the  subject  of  capital  punishment, 
so  that  you  would  not,  because  you  conscienti-  ! 
ously  could  not,  render  a  verdict  of  guilty,  death 
being  the  punishment,  though  the  evidence  re- 
quired such  a  verdict  ? 

Juror.  I  have  not. 

Mr.  Ludlow.  Have  you  formed  or  expressed 
any  opinion,  relative  to  the  matter  now  on  trial 0 
Juror.  Not  any. 

Mr.  Ludlow.  Are  you  sensible  of  any  such 
prejudice  or  bias  as  may  affect  your  action  as 
juror  ? 

Juror.    Not  any. 

Mr.  Ludlow.  Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment  ? 

Juror.    I  have  not, 

Mr.  Ludlow.  Have  you  read  anything  of  this 
case  which  has  induced  you  to  make  up  your 
mind  as  to  whether  the  offence  charged  in  the  in- 
dictment, constitutes  treason  or  not  ? 

Juror.    I  have  not,  sir. 

Mr.  Ludlow.  Have  you  formed  an  opinion, 
that  the  law  of  the  United  States,  known  as  the 
"  Fugitive  Slave  Law  of  1850,"  is  unconstitution- 
al, so  that  you  cannot,  for  that  reason,  convict  a 
person  indicted  for  a  forcible  resistance  thereto, 
if  the  facts  alleged  in  the  indictment  are  proved, 
and  the  Court  hold  the  statute  to  be  constitu- 
tional ? 

Juror.    I  have  not. 


Mr.  Ashmead.    Let  the  juror  be  sworn. 

Juror  sworn,  and  takes  his  seat  in  the  box. 

Jno.  G.  Watmough  was  called,  and  answered. 

Mr.  Cutler.    Swear  the  juror. 

The  juror  is  sworn  on  his  voir  dire. 

Mr.  Cutler.  Have  you  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  be 
tried  ? 

Juror.  I  have  formed  a  very  decided  opinion, 
when  in  conversation  with  my  fellow-citizens, 
and  I  have  argued  strongly  against  the  whole 
business. 

Mr.  Cutler.  Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment  ? 

Juror.  I  do  not  know  any  of  the  parties  who 
are  named ;  I  have  no  recollection  of  them. 

Mr.  Stevens.    We  challenge  for  cause. 

Judge  Grier.    Set  him  aside. 

Charles  Massey  is  called,  and  makes  no  an- 
swer. 

Judge  Grier.    He  is  excused  for  the  term. 

Josiah  Rich  was  called,  and  answered. 

Clerk.  Juror,  look  upon  the  prisoner.  Pri- 
soner, look  upon  the  juror.  How  say  you,  pri- 
soner, challenged  or  not  challenged? 

Prisoner.    Not  challenged. 

Mr  Ludlow.  We  ask  that  this  juror  be  set 
aside  for  the  present, 

Joseph  Culbertson  was  called,  and  did  not  an- 
swer. 

Judge  Grier.    Excused  for  the  term. 
Matthias  W.  Baldwin  was  called,  and  an- 
swered. 

Clerk.  Juror,  look  upon  the  prisoner.  Pri- 
soner, look  upon  the  juror.  How  say  you,  pri- 
soner, challenged  or  not  challenged  ? 

Prisoner.    Not  challenged. 

Mr.  Ludlow.  We  ask  that  this  juror  may  be 
set  aside  for  the  present, 

John  Richardson  is  called,  and  makes  no  an- 
swer. 

Clerk.  He  is  excused  until  Tuesday,  the 
second. 

George  Smith  was  called,  and  answered. 

Clerk.  Juror,  look  upon  the  prisoner.  Pri- 
soner, look  upon  the  juror.  How  say  you,  pri- 
soner, challenged  or  not  challenged  ? 

Prisoner.    Not  challenged. 

Mr.  Ludlow.  We  ask  that  this  juror  may  be 
set  aside  for  the  present. 

Samuel  Diller  was  called,  and  answered. 

Clerk.  Juror,  look  upon  the  prisoner.  Pri- 
soner, look  upon  the  juror.  How  say  you,  pri- 
soner, challenged  or  not  challenged  ? 

Prisoner.  Not  challenged. 

Mr.  Ludlow.  We  ask  that  this  juror  may  be 
set  aside  for  the  present, 

Evan  Rogers  is  called  and  answers. 

Mr.  Cutler.    Swear  the  juror. 

The  juror  is  sworn  on  his  voir  dire. 

Mr.  Cutler.  Have  you  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  be  tried? 

Juror.    I  have  not, 

Mr.  Cutler.  Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 


30 


TREASON  CASES. 


accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment  ? 
Juror,    I  have  not. 

Mr.  Cutler.  Have  you  heard  anything  of 
this  case  which  has  induced  you  to  make  up  yoiir 
mind  as  to  whether  the  offence  charged  in  the 
indictment  constitutes  treason  or  not  ? 

Juror.    Yes,  I  have. 

Mr.  Stevens.    We  challenge  for  cause. 

Joshua  Elder  was  called  on  number  31. 

Mr.  Stevens.    Ee  is  so  on  our  list. 

Jacob  Dillinger  is  called  and  answers.  I 
make  an  application  to  be  discharged  on  account 
of  sickness.  I  have  a  disease  of  the  kidneys  and 
have  been  bleeding  all  this  morning,  and  I  am 
very  much  afraid  that  I  could  not  sit  in  the  box. 

Judge  G-rier.  Will  you  be  excused  for  the 
term,  for  next  week,  or  what  ? 

Juror.  I  would  rather  be  excused  for  the 
term. 

Judge  Kane.  Are  you  subject  to  the  com- 
plaint ? 

Juror.    Yes,  sir. 

Judge  Grier.    Excuse  him  for  the  term. 
Hugh  Ross  is  called  and  answers. 
Mr.  Cuyler.    Swear  the  juror. 
The  juror  is  sworn  on  his  voir  dire. 
Mr.  Cuyler.    Have  you  formed  or  expressed 
an  opinion,  relative  to  the  matter  now  to  be  tried  ? 
Juror.    I  bave. 

Mr.  Stevens.  That  is  enough,  if  the  Court 
please.    We  challenge  him.  That  is  all,  Mr.  Ross. 

Judge  Grier.  That  is  very  vague,  this  case 
will  not  be  finished  until  Christmas. 

Mr.  Stevens.  Your  Honors  directed  the  ques- 
tions. 

Mr.  Ashmead.  That  was  only  a  part  of  the 
series. 

Judge  Kane.  The  Court  has  not  decided  that 
the  Court  should  ask  the  questions,  but  that  the 
counsel  for  the  prosecution  may  ask  them. 

Mr.  Stevens.  We  thought  we  were  at  liberty 
to  present  them. 

Judge  Kane..  Certainly,  but  not  under  an 
injunction  to  do  so. 

Franklin  Vanzant  is  called  and  makes  no 
answer. 

Judge  Grier.  Franklin  Vanzant  is  excused 
until  next  Monday. 

John  Rupp  is  called  and  answers. 

Mr.  Stevens.  Did  1  understand  the  Court  to 
excuse  Mr.  Rupp,  when  the  question  came  up  ? 

Judge  Grier.  No,  sir.  He  said  he  had  to  at- 
tend Court  in  Cumberland  County  in  December, 
and  the  Court  said  that  if  he  was  called  and 
served  upon  this  case,  they  would  excuse  him 
from  further  duty  the  remainder  of  the  term, 
as  we  think  it  might  be  finished  before  the  time 
comes  for  him  to  commence  his  public  duties 
there. 

Mr.  Stevens.  I  am  aware  he  has  lately  been 
elected  an  Associate  Judge  in  Cumberland  County. 
Mr.  Cuyler.    Swear  the  Juror. 
Juror.    I  affirm. 

The  juror  is  affirmed  on  his  voir  dire. 
Mr.  Cuvler.    Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 


acciised  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment  ? 

Juror.  I  do  not  know  that  I  ha^e  formed 
or  expressed  an  c  pinion,  but  I  am  not  in  favor 
of  death,  in  cases  like  this. 

Judge  Grier.  That  is  no  answer  to  the  ques- 
tion. 

Mr.  Stevens.  It  is  an  answer  to  the  question, 
with  a  supplement. 

Clerk.  Juror,  look  upon  the  prisoner.  Pri- 
soner, look  upon  the  juror.  How  say  you,  pri- 
soner, challenged  or  not  challenged  ? 

Prisoner.    Not  challenged. 

Mr.  Ludlow.  Have  you  any  conscientious 
scruples  upon  the  subject  of  capital  punishment, 
so  that  you  would  not,  because  you  conscien- 
tiously could  not,  render  a  verdict  of  guilty, 
death  being  the  punishment,  though  the  evidence 
required  such  a  verdict  ? 

Juror.  No,  I  could  not  in  cases  of  this  kind. 
I  could  not  go  in  for  death  in  cases  of  this  kind. 

Mr.  Cooper.  That  is  answer  enough.  Chal- 
lenged for  cause. 

Mr.  Stevens.  He  says  in  cases  of  this  kind 
that  he  could  not  go  in  for  death.  He  don't 
speak  of  his  conscientious  scruples. 

Mr.  Lewis.  He  has  repugnance  to  death  in 
cases  of  this  kind.  Whether  that  repugnance 
could  be  overcome  upon  a  view  of  the  law  and 
evidence,  is  a  question  which  has  not  yet  been 
asked  or  answered.  If  I  understand  the  Court, 
the  juror  is  to  be  asked  whether,  (under  the 
instructions  of  the  Court,  and  an  impartial  view 
of  the  evidence),  he  will  not  be  guided  to  alter 
his  opinion  under  such  facts.  If  his  scruples 
would  not  prevent  that,  I  should  consider  him  a 
perfectly  competent  juror,  or  else  I  have  mis- 
understood the  Court. 

Judge  Grier.  I  understand  him  to  answer  in 
the  negative. 

Juror.  I  am  not  in  favor  of  capital  punishmen  t 
at  all 

Mr.  Lewis.  I  wish  permission  to  ask  him 
whether  he  is  conscientiously  scrupulous,  so  far 
as  to  make  up  his  mind,  without  any  regard  to 
the  directions  that  might  be  received  from  the 
Court  ?    That  is  the  question. 

Judge  Grier.  Have  you  any  conscientious 
scruples  upon  the  subject,  so  that  you  would  not, 
because  you  conscientiously  could  not,  render  a 
verdict  of  guilty,  death  being  the  punishment, 
though  the  evidence  required  such  a  verdict? 

Juror.  Yes,  sir,  I  have. 

Judge  Grier.  He  has  said  so  over  and  over 
again.  The  juror  may  be  excused  for  the  term 
if  he  desires  it. 

Andrew  C.  Barclay  is  called  and  answers. 

Mr.  Cuyler.  Swear  Mr.  Barclay. 

The  juror  is  sworn  on  his  voir  dire. 

Mr.  Cuyler.  Have  you  formed  or  expressed, 
any  opinion  in  relation  to  the  matter  now  to  be 
tried  ? 

Juror.  I  have. 

Mr.  Stevens.  We  challenge  him,  sir. 
Robert  Ewing  is  called,  and  answers. 
Mr.  Cuyler.    Swear,  Mr.  Ewing. 
The  juror  is  sworn  on  his  voir  dire. 


UNITED  STATES  V.  HAN  WAY. 


81 


Mb.  Cutler.  Have  you  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  be 
tried  ? 

Juror.    I  have  not. 

Mb.  Cutler.  Are  yon  sensible  of  any  such 
prejudice  or  bias  therein,  as  may  affect  your 
action  as  a  juror  ? 

Juror,    i  have  not. 

Mb.  Cutler.  Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in.  the  offence  charged 
against  him  in  the  indictment 

Juror.    I  have  not. 

Challenged  by  the  prisoner. 

Chas.  Massey  is  caU-ed,  and  answers  not. 

Judge  Grier,    He  was  excused  yesterday. 

Jonathan  Cook  is  called,  and  answers. 

The  juror  was  sworn  on  his  voir  dire. 

Mr.  Cutler.  Have  you  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  be 
tried  ? 

Juror.    I  have. 

Mr.  Stetexs.    Challenge  for  cause. 

John  Smith  is  called  and  answers. 

The  juror  affirms  on  his  voir  dire. 

Mr.  Cutler.  Have  you  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  be 
tried  ? 

Juror.  I  have  formed  some  opinion,  but  have 
not  expressed  it. 

Mr.  Cutler  Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment  ? 

Juror.  I  do  not  think  I  have. 

Mb.  Cutler.  Have  you  heard  any  thing  of 
this  case,  which  has  induced  you  to  make  up 
your  mind,  as  to  whether  the  offence  charged  in 
the  indictment,  constitutes  treason  or  not  ? 

Juror.  Yes,  I  have  made  up  my  mind  as  to  I 
the  subject  of  treason,  provided  the  facts  are 
proved  against  the  prisoner,  not  as  to  the  guilt 
of  the  prisoner. 

Mr.  Stevexs.  I  understand  him  to  say  that  he  j 
has  formed  his  opinion  but  not  expressed  it.  1 
challenge  for  cause. 

Mr.  Lewis.  I  have  a  precedent  which  shows 
that  any  bias  on  the  part  of  a  juror,  is  suf- 
ficient to  exclude  him  from  a  panel.    Nor  is 
it  possible  for  himself  to  judge  as  to  whether 
or   not    (owing   to    the   impression   that  has 
already  been  formed  in  his  mind)  his  opinion 
will  be  altered  by  the  charge  from  the  Court.  If 
he  has  any  bias  whatever,  that  bias  is  sufficient  i 
to  exclude  him.    He  must  be  superior  to  all  ex-  j 
ception.    "  Omina  exceptiona  major."    It  is  not  i 
to  be  argued,  as  to  whether  he  has  formed  an  i 
opinion,  or  as  to  whether  the  Juror  has  ex- 
pressed it  or  not.    It  is  not  to  be  argued  that  he  I 
is  going  into  the  jury-box.  and  under  that  bias 
that  he  will  not  discharge  his  duty  fairly.  This 
seems  to  have  been  the  doctrine  in  the  case  of 
the  Commonwealth  against  Lesher,  17,  SergeirstT 
and  Rawle,  186,  (which  reads.)    It  does  not  deal  ! 
with  a  juror  as  with  a  witness.    We  stand  unon  j 
this  ground.    He  has  said  '*  I  have  formed  an  , 


opinion."  Does  not  that  come  within  the  letter 
of  this  decision,  when  it  says  that  any  bias  will 
be  sufficient  to  exclude  a  juror,  and  that  he  must 
be  superior  to  all  exception.  He  is  not  asked  to 
do  that  which  it  seems  impossible  for  him  to  do. 
He  is  not  to  change  his  opinion  or  to  ask  the 
Court  whether  his  opinion  is  to  be  changed  or 
not,  because  that  is  for  the  judgment  of  the  Court. 
In  answer  to  the  question,  he  says  "I  have  made 
up  my  mind  it  is  a  case  of  treason  if  the  facts  are 
proved."  He  is,  therefore,  a  judge  of  the  law 
himself,  and  has  assumed  the  province  of  a  juror, 
after  going  into  the  jury-box,  without  being  en- 
lightened by  the  Court,  so  as  to  decide  whether 
it  is  oris  not  a  case  of  treason. 

Whether  your  Honors  would  charge  that  it 
was  treason  or  not,  or  whether  hi?  mind  would 
be  changed,  ir  is  not  a  question  that  the  Court 
has  to  decide.  Because  the  juror  is  to  be  supe- 
rior to  all  bias  and  all  exceptions. 

Me.  Read.  There  is  another  precedent  with 
regard  to  this  matter  of  changing  the  mind  of 
the  juror.  It  is  to  be  found  in  page  875  of  the 
first  volume  of  Burr's  Trial :  it  is  as  follows  : 

''John  Roberts  had  thought  and  declared,  from 
the  reports  in  the  public  newspapers,  that  the 
prisoner  was  guilty  of  treason,  though  he  had  no 
doubt  that  his  opinion  migat  be  changed  by  the 
pi  eduction  of  other  testimony.  He  was  set. 
aside  as  incompetent." 

The  rule  then  was  different  to  what  it  now  is, 
namely,  that  a  juror  was  not  only  to  form  but  to 
express  an  opinion.  In  the  foregoing  case  the 
Chief  Justice  said  the  juror  must  be  set  aside, 
because  he  was  incompetent. 

Mr.  Cooper.  1  suppose  that  this  case  was 
really  settled  by  the  Court  in  the  case  of  one  of 
the  first  jurors  who  was  called.  The  case  of  Mr. 
Walsh.  It  has  been  observed  that  Mr.  Smith 
has  only  expressed  an  opinion  that  if  the  facts 
stated  in  the  newspapers  were  true,  that  those 
facts  would  constitute  treason,  but  he  has  not 
connected  the  prisoner  with  it.  Has  he  formed 
any  opinion  as  regards  the  guilt  or  innocence  of 
the  prisoner,  or  as  to  the  truth  of  the  facts  stated 
in  the  newspapers.  I  disavow  both  of  these. 
If  the  ground  taken  by  the  counsel  for  the 
defendant  can  be  sustained,  then  a  man's  in- 
telligence would  be  a  cause  for  challenge.  To 
recur  again  to  the  statement  of  the  juror  as  to 
whether  he  had  made  up  his  mind  upon  the 
facts  stated.  Supposing  that  to  be  true,  namely, 
that  he  considered  the  crime  treason.  J\ow 
every  intelligent  man  would  probably  say  the 
same  upon  that  state  of  facts,  if  he  knew  them 
to  be  so,  and  say  the  crime  was  treason. 

Judge  Grier.'  Suppose  the  question  had  been 
the  converse,  would  not  you  have  challenged  him? 
It  has  been  so  said  by  some  of  the  papers  who 
have  taken  upon  themselves  to  settle  the  whole 
law  with  regard  to  these  proceedings,  that  this 
transaction  is  not  treason.  They  have  advanced 
a  great  many  arguments,  and  none  of  them  very 
profound:  newspaper  arguments  generally  are 
not.  Suppose  a  man  is  biased  on  account  of  read- 
ing a  certain  clause  in  a  certain  paper,  or  that  he 
is  infiuencd  by  a  peculiar  class  in  society  in  which 
he  has  lived,  to  believe  that  this  transaction  is 


32 


TREASON  CASES. 


not  treasonable,  would  he  be  a  proper  man  to  sit 
here  as  a  juror  ? 

Mr.  Cooper.    My  idea  is,  he  would  not  be. 

Judge  Grier.  Suppose  on  the  contrary,  this 
man,  from  his  knowledge  of  the  transaction, 
had  come  to  the  conclusion  that  it  was  treason, 
ought  it  to  make  any  difference,  as  regards  his 
capability  as  a  juror  Suppose  a  person  saw 
another  man  break  into  a  house,  would  he  not 
form  an  opinion  that  the  offence  of  which  he  was 
guilty  was  burglary  ?  A  man  may  be  engaged  in 
a  riot,  in  which  officers  of  the  law  are  resisted, 
and  his  intention  not  traitorous.  You  have  two 
things  to  prove.  You  may  prove  that  this  man  was 
engaged  in  the  transaction,  and  that  the  officers 
were  resisted  in  the  performance  of  their  duties  ; 
still  it  may  be  nothing  but  murder.  You  have  to 
determine  the  question  of  intention,  and  that  is, 
whether  it  is  treason  or  not.  In  such  a  case,  I  ask 
you,  if  he  had  decided  that  it  was  not  treason, 
whether  you  would  or  would  not  challenge  him  ? 

Mr.  Cooper.  I  think  I  have  comprehended  the 
Court  perfectly,  and  though  that  would  be  good 
cause  of  challenge,  we  have  thought  on  the  part 
of  the  prosecution  that  there  was  a  distinction. 

Judge  Grier.    I  want  to  hear  that. 

Mr.  Cooper.  It  is  this,  and  it  is  a  matter 
which  the  Court  will  take  into  consideration,  in 
deciding  the  competency  of  every  juror  who  pre- 
sents himself.  If  the  statements  made,  and 
which  the  juror  read,  contained  the  facts  neces- 
sary to  make  out  the  charges  in  the  indictment, 
and  he  had  made  up  his  opinion  correctly  upon 
those  facts,  would  there  not  be  a  difference  be- 
tween that,  and  if  he  had  made  them  up  upon  a 
state  of  facts  that  did  not  warrant  the  same  con- 
clusion. Do  the  Court  apprehend  the  idea?  We 
suppose  the  facts  stated  if  proved,  will  make  out 
the  charge  of  treason,  and  we  suppose  that  every 
intelligent  juror,  who  has  read  the  Constitution, 
and  who  has  a  clear  and  logical  mind,  would  come 
to  the  conclusion,  that  that  state  of  facts  warrant- 
ed him,  in  my  opinion,  in  coming  to  the  judgment 
that  the  party  was  guilty  of  treason.  But  if  on 
the  same  state  of  facts  which  had  warranted  the 
juror  in  coming  to  a  conclusion,  he  is  to  come  to 
a  different  one,  would  it  not  show  more  of  vice 
than  in  this  case  ?  Here  he  has  formed  a  correct 
opinion  of  facts,  but  did  not  connect  the  party 
charged  with  the  offence.  That  constitutes  the 
distinction  between  this  case  and  the  one  pre- 
sented by  Mr.  Read  just  now.  So  in  the  case  of 
Robinson.  As  to  whether  he  had  expressed  him- 
self  that  Aaron  Burr  was  guilty  of  treason.  II ; 
had  not  stated,  that  the  facts  did  or  did  not  con- 
stitute treason,  provided  they  were  proved.  And 
it  seems  to  me,  that  there  is  a  very  wide  distinc- 
tion between  saying  that  a  certain  state  of  facts, 
induces  him  to  believe  that  if  they  were  proved 
he  was  guilty  of  treason,  and  to  say  he  was 
guilty  of  treason.  When  you  perceive  a  bias 
against  a  prisoner,  the  law  will  not  tolerate  it. 
It  seems  to  me  there  is  a  vast  difference  between 
an  opinion  that  is  wrong,  and  a  person  having 
made  up  a  correct  judgment,  in  which  he  cannot 
entertain  any  prejudice.  And  we  have,  therefore, 
thought  it  was  a  proper  distinction  to  make. 
For  instance,  if  a  juror  were  to  say  that  he  did 


1  not  consider  the  facts  in  this  case,  as  he  under- 
stood them,  making  out  a  charge  of  treason  ;  but 
if  the  Court  gave  him  contrary  directions,  and  he 
would  be  governed  by  them,  we  would  consider 
him  to  be  a  good  juror.  And  I  do  not  think  this 
case  different  from  that.  The  question  is  now 
before  the  Court. 

Mr.  Read.  It  is  very  difficult  ever  to  find 
exactly  the  same  case  that  has  been  decided 
before.  In  the  trial  of  Burr,  it  seems  to  me  the 
Chief  Justice  decided  as  if  he  were  the  tryer  and 
every  thing  else.  It  has  been  stated  that  a  juror 
should  come  quite  indifferent  into  the  box.  It 
seems  to  me  it  would  not  be  so,  if  this  juror  were 
empanelled  to  try  this  prisoner.  It  is  your  ob- 
iject,  if  possible,  to  get  a  piece  of  blank  paper 
!  there.  We  cannot  expect  that,  but  we  must  en- 
deavor to  arrive  at  it  as  near  as  possible. 

If  therefore  this  juror  goes  into  the  box  with 
an  impression  to  be  removed,  the  inference  is 
that  we  shall  have  to  go  to  work  with  this  juror, 
and  we  are  to  labor  at  him  to  get  this  impression 
out  of  his  mind.  Suppose  he  said  that  he  had 
formed  his  opinion  that  it  was  not  treason.  Then 
the  United  States  must  go  to  work  to  remove 
this  impression  of  his  mind.  You  want  a  jury 
to  go  into  the  box  and  decide  upon  the  law  and 
evidence  as  given  them.  That  is  what  you  want. 
If  we  could  get  a  juror  to  go  into  a  case  knowing 
nothing  of  his  own  knowledge  of  the  case,  it 
would  be  one  much  to  be  desired.  The  question 
that  he  answered  was  in  the  affirmative.  Sup- 
posing it  had  been  a  negative  to  our  question. 
Would  you  not  consider  him  a  biased  juror.  My 
friend  says,  Yes.  Why  is  not  the  converse  re- 
ceived? Why  should  he  not  be  rejected  if  he 
has  made  up  his  mind  it  is  treason?  Your 
honors  find  unbiased  jurors  can  be  got  here,  and 
therefore  we  only  ask  you  to  deal  out  (as  we  know 
you  will)  exactly  the  same  justice  to  us  as  you 
would  extend  to  the  United  States.  If,  therefore, 
the  negative  answer  would  have  made  the  juror 
incompetent  in  view  of  the  United  States,  of 
course  the  affirmative  is  in  our  favor.  What  does 
Chief  Justice  Marshall  say  on  page  419  of  1st 
Burr's  Trial,  in  an  opinion  delivered  after  mature 
reflection — 

"  The  opinion  of  the  Court  is,  that  to  have 
made  up  and  delivered  the  opinion,  that  the 
prisoner  entertaine  I  the  treasonable  designs  with 
which  he  is  charged,  and  that  he  retained  those 
designs,  and  was  prosecuting  them  when  the  act 
charged  in  the  indictment  is  alleged  to  have  been 
committed,  is  good  cause  of  challenge." 

Put  the  converse  of  the  two  propositions. 
Does  not  the  same  question,  as  showing  what 
would  be  wrong  against  the  United  States,  in 
one  instance,  prove  it  to  be  wrong  against  the 
prisoner  in  the  other  ?  When  such  a  question  as 
that  is  put,  it  demands  the  same  decision  on 
both  sides.  If  a  party  has  previously  formed  an 
opinion  that  it  is  treason  on  one  side,  the  ques- 
tion is  whether  he  is  or  is  not  an  impartial 
juryman?  That  is  our  view  of  the  case.  We 
may  be  wrong.  But  put  it  in  the  way  your 
honors  did.  You  would  think  him  an  incompe- 
tent juror.  If  he  has  formed  an  opinion  with 
regard  to  its  being  treason,  it  obliges  us  to  take 


UNITED  STATES  V.  HANWAY. 


33 


apon  ourselves  to  get  out  of  the  mind  of  the* 
juryman  his  previous  opinion.  That  is  neither 
fair  to  the  United  States  or  to  us.  We  want  to  go 
to  a  jury,  who  are  unbiased  (as  far  as  we  can)  as 
regards  both  parties.  Regarding  neither  side, 
and  desiring  nothing  but  strict  justice  between 
them.  In  law  the  prisoner  is  entitled  to  the 
benefit  of  a  doubt  in  the  minds  of  the  jury,  and 
that  is  all.  Are  we  to  endeavor  to  remove  from 
the  mind  of  a  juror  his  preconceived  notion  that 
this  is  treason  ?  It  is  asking  the  same  question 
as  might  be  proposed  to  the  counsel  for  the 
United  States  in  a  converse  shape.  This  would 
not  be  just  to  the  prisoner,  or  to  any  other 
party. 

Judge  Grier.  It  is  very  natural  that  if  your 
neighbor's  house  has  been  broken  open  and  rob- 
bed of  all  its  contents,  that  you  should  come  to 
the  conclusion  that  it  was  burglary.  The  belief 
of  such  a  thing  should  not  prevent  a  juror  being 
sworn  in  a  panel  who  are  trying  that  case  on 
which  he  has  formed  such  an  opinion.  Surely  it 
would  not  be  sufficient  reason  to  challenge  him. 
But  if  a  person  comes  to  a  conclusion  that  such  a 
transaction  as  took  place  at  Christiana  is  not  trea-  \ 
son,  and  that  is  admitted  to  be  a  ground  of  chal- 
lenge by  one  side,  I  cannot  see  why,  if  his  opin- 
ion is  made  up  that  it  is  treason,  it  is  not  suffici- 
ent ground  of  challenge  for  the  other  ;  the  ques- 
tion of  treason  or  not  treason,  being  one  of  the 
great  questions  of  the  case,  and  depending  on 
intention,  which  is  a  question  of  fact. 

Judge  Kane.  The  challenge  is  sustained. 

John  Clendenin  is  called  and  answers. 

The  juror  is  affirmed  on  his  voir  dire. 

Mr.  Cutler.  Have  you  formed  or  expressed 
anv  opinion  relative  to  the  matter  now  to  be 
tried  ? 

Juror.  I  have  neither  formed  nor  expressed 
an  opinion  concerning  it. 

Mr.  Cutler.  Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment  ? 

Juror.  I  have  not. 

Mr.  Cutler.  Have  you  heard  any  thing  of 
this  case  which  has  induced  you  to  make  up  your 
mind  as  to  whether  the  offence  charged  in  the 
indictment  constitutes  treason  or  not  ? 

Juror.  I  have  not  heard  anything,  and  I  have 
avoided  all  conversation  and  intercourse  with 
men  which  would  lead  me  to  form  an  opinion  as 
to  his  guilt  or  innocence. 

Challenged  by  the  prisoner. 

Peter  Martin  is  called  and  answered. 

Not  challenged  by  the  prisoner. 

The  juror  affirms  on  his  voir  dire. 

Mr.  Ludlow.  Have  you  any  conscientious 
scruples  upon  the  subject  of  capital  punishment, 
Bo  that  you  would  not,  because  you  conscien- 
tiously could  not  render  a  verdict  of  guilty,  death 
being  the  punishment,  though  the  evidence  re- 
quired such  a  verdict? 

Juror.  I  have  not. 

Mr.  Ludlow.  Have  you  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  be 
tried  ? 


Juror.  No,  sir. 

Mr.  Ludlow.  Are  you  sensible  of  any  such 
prejudice  or  bias  therein,  as  may  affect  your  ac- 
tion as  a  juror  ? 

Juror.  I  think  not. 

Mr.  Ludlow.  Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment  ? 

Juror.    No,  sir. 

Me.  Ludlow.  Have  you  heard  anything  of 
this  case  which  has  induced  you  to  make  up  your 
mind  as  to  whether  the  offence  charged  in  the  in- 
dictment constitutes  treason  or  not  ? 

Juror.  Yes,  sir :  I  read  an  account  in  the 
paper,  and  was  rather  under  the  impression  that 
it  might  be  treason, 

Mr.  Ludlow.  Have  you  formed  an  opinion 
that  the  law  of  the  United  States,  known  as  the 
Fugitive  Slave  Law  of  1850.  is  unconstitutional, 
so  that  you  cannot,  for  that  reason,  convict  a  per- 
son indicted  for  a  forcible  resistance  thereto,  if 
the  facts  alleged  in  the  indictment  are  proved 
and  the  Court  hold  the  statute  to  be  constitu- 
tional ? 

Juror.    I  have  not. 

Mr.  Ashmead.    Let  the  juror  be  sworn. 
Juror.    I  affirm. 

Judge  Grier.    Are  you  conscientiously  scru- 
pulous about  taking  an  oath. 
Juror.    Yes,  sir. 

Juror  affirmed,  and  takes  his  seat  in  the  box. 

Thomas  H.  White  is  called  and  answers. 

The  juror  is  sworn  on  his  voir  dire. 

Mr.  Cutler.  Have  you  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  be 
tried  ? 

Juror.  As  to  the  matter  to  be  tried,  I  have 
formed  an  opinion  expressly, 

Mr.  Cutler.  I  repeat  the  question.  Have 
you  formed  or  expressed  any  opinion  relative  to 
the  matter  now  to  be  tried? 

Juror.    I  have. 

Mr.  Cutler.    I  challenge  for  cause. 

George  G.  Brush  is  called  and  answers. 

The  juror  is  sworn  on  his  voir  dire. 

Mr.  Cutler.  Have  you  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  be 
tried  ? 

Juror.    No,  sir. 

Mr.  Cutler.  Have  you  formed  or  expressed 
any  opinion  as  to  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment  ? 

Juror.    I  have  not.  No. 

Mr.  Cutler.  Have  you  heard  anything  of 
this  case  which  has  induced  you  to  make  up 
your  mind  as  to  whether  the  offence  charged  in 
the  indictment  constitutes  treason  or  not? 

Juror.    No,  sir.  I  have  not. 

The  prisoner  challenges  the  juror. 

Lesher  Trexler  is  called  and  answers. 

Not  challenged  by  the  prisoner. 

Mr.  Ludlow.  I  ask  that  this  juror  may  be 
set  aside  for  the  present. 

Sketchley  Morton  is  called  and  answers. 


34 


TREASON  CASES. 


Not  challenged  by  the  prisoner. 

Mr.  Ludlow.  I  ask  that  this  prisoner  may 
be  set  aside  for  the  present. 

Samuel  Hughes  was  called  and  answered. 

The  Juror  is  sworn  on  his  voir  dire. 

Mr.  Cuyler.  Have  you  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  be 
tried  ? 

Juror.    I  have  not. 

Mr.  Cutler.  Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment? 

Juror.    I  have  not. 

Mr.  Cuyler.  Have  you  heard  anything  of 
this  case  which  has  induced  you  to  make  up  your 
mind  as  to  whether  the  offence  charged  in  the  in- 
dictment constitutes  treason  or  not  ? 

Juror.  I  have  read  about  it  and  made  up  my 
mind. 

Mr.  Cuyler.    Challenged  for  cause. 

Matthias  Richards  is  called  and  answers. 

The  Juror  is  swoi^n  on  his  voir  dire. 

Mr.  Cuyler.  Have  you  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  be 
tried  ? 

Juror.    I  have  not. 

Mr.  Cuyler.  Have  you  formed  or  expressed 
an}*  opinion  as  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment? 

Juror.    I  have  hot. 

Mr.  Cuyler.  Have  you  heard  anything  of 
this  case  which  has  induced  you  to  make  up  your 
mind  as  to  whether  the  offence  charged  in  the  in- 
dictment constitutes  treason  or  not  ? 

Juror.    I  have  not. 

The  prisoner  challenges  the  juror. 

Robert  Smith  is  called  and  answers. 

Not  challenged  by  the  prisoner. 

The  Juror  is  sworn  on  his  voir  dire. 

Mr.  Ludlow.  Have  you  any  conscientious 
scruples  upon  the  subject  of  capital  punishment,  ■ 
so  that  you  would  not,  because  you  conscientious- 
ly could  not  render  a  verdict  of  guilty,  death 
being  the  punishment,  though  the  evidence  re- 
quired such  a  verdict  ? 

Juror.    No,  sir. 

Mr.  Ludlow.  Have  you  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  be 
tried  ? 

Juror.    I  have  not. 

Mr.  Ludlow.  Are  you  sensible  of  any  such 
prejudice  or  bias  therein,  as  may  affect  your 
action  as  a  juror  ? 

Juror.    No,  sir. 

Mr.  Ludlow.  Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment  ? 

Juror.    No,  sir. 

Mr.  Ludlow.  Have  you  heard  anything  of 
this  case  which  has  induced  you  to  make  up  your 
mind  as  to  whether  the  offence  charged  in  the  in- 
dictment constitutes  treason  or  not  ? 


Juror.    No,  sir. 

Mr.  Ludlow.  Have  you  formed  an  opinion 
that  the  law  of  the  United  States,  known  as  the 
Fugitive  Slave  of  1850,  is  unconstitutional,  so 
that  you  cannot  for  that  reason  convict  a  person 
indicted  for  a  forcible  resistance  thereto,  if  the 
facts  alleged  in  the  indictment  are  proved  and 
the  Court  hold  the  statute  to  be  constitutional  ? 

Juror.    I  have  not,  sir. 

Mr.  Ashmead.    Let  him  be  sworn. 

The  Juror  is  sworn,  and  takes  his  seat  in  the 
box. 

Marmaduke  More  is  called  and  answers. 
Mr.  Cuyler.  Let  the  Juror  be  sworn. 
Juror.    I  do  not  swear. 

J udge  Grier.  Have  you  conscientious  scruples 
with  regard  to  swearing  ? 

Juror.    No,  sir,  but  I  never  do. 

Judge  Grier.    Then  you  must  be  sworn,  sir. 

The  juror  is  sworn  on  his  voire  dire. 

Mr.  Cuyler.  Have  you  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  be 
tried  ? 

Juror.    Nothing  definite  or  positive. 

Mr.  Cuyler.  Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment  ? 

Juror.  I  have  not,  that  I  know  of.  I  am 
not  positive.  In  the  midst  of  this  excitement  and 
public  controversy,  I  might  have  said  something. 
I  do  not  remember  now. 

Mr.  Cuyler.  Have  you  heard  any  thing  of 
this  case  which  has  induced  you  to  make  up  your 
mind  as  to  whether  the  offence  charged  in  the 
indictment  constitutes  treason  or  not  ? 

Juror.    No,  sir. 

The  prisoner  challenges  the  Juror. 
Judge  Grier.    The  Court  is  adjourned  till  10 
o'clock  to-morrow. 


Wednesday,  November  26th,  1851. 
Court  was  openkd  at  10  o'clock. 
PRESENT,  JUDGES  CRIER  AND  KANE. 
On  motion  of  Mr.  Ashmead,  Robt.  J.  Brent,  Esq. 
of  Maryland  was  admitted  to  practice  as  an  attor- 
ney of  this  Coiirt. 

The  fine  of  Caleb  Cope,  juror,  was  remitted, 
and  he  was  excused  on  account  of  ill  health. 
Jurors  called. 

Jurors  empanelled  were  called,  and  all 
answered  to  their  names. 

Joshua  Elder  is  called  and  answers. 

Clerk.  Juror,  look  upon  the  prisoner  ;  pri- 
soner, look  upon  the  juror.  How  say  you  ? 
Challenged  or  not  challenged. 

Prisoner.    Not  challenged. 

Mr.  Ludlow.  We  ask  that  this  juror  may  be 
set  aside  for  the  present. 

William  Watson  is  called  and  answers. 

Not  challenged  by  the  prisoner. 

Mr.  Ludlow.  I  ask  that  this  juror  be  set 
aside  for  the  present. 

John  T.  Bazley  is  called  and  answers. 

Affirmed  oh  his  voir  dire. 


UNITED  STATES  V.  HANWAY. 


85 


ou  formed  or  expressed 
the  matter  now  to  be 


Mr.  Cutler.  Have  2 
any  opinion  relative  to 
tried  ? 

Juror.    I  have. 

Mr.  Stevens.    We  challenge  for  cause. 

Williain  Williamson  is  called  and  answers. 

Affirmed  on  his  voir  dire. 

Mr.  Cttler.  Have  you  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  "be 
tried  ? 

Juror.    I  have  not. 

Mr.  Cutler.  Are  you  sensible  of  any  such 
prejudice  or  bias  therein,  as  may  affect  your 
action  as  a  juror  ? 

Juror.    I  am  not. 

Mr.  Cutler.  Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment  ? 

Juror.    I  have  not. 

Mr.  Cutler.  Have  you  heard  anything  of 
this  case  which  has  induced  you  to  make  up 
your  mind  as  to  whether  the  offence  charged  in 
he  indictment  constitutes  treason  or  not  ? 

Juror.    I  have  not. 

Clerk.  Juror,  look  upon  the  prisoner ;  pri- 
soner, look  upon  the  juror.  How  say  you? 
Challenged  or  not  challenged  ? 

Prisoner.  Challenged. 

Philip  Smyser  is  called  and  answers. 

Affirmed  on  his  voir  dire. 

Mr.  Cutler.  Have  you  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  be 
tried  ? 

Juror.    I  have  not. 

Judge  Grier.  This  question  being  one  of  a 
class,  and  being  particularized  by  more  which 
follow,  the  juror  must  of  course  understand  it  as 
referring  to  the  matters  after  it. 

Mr.  Stevexs.  We  might  strike  that  out  al- 
together. 

Judge  Grier.  I  think  it  would  be  better 
stricken  out.  For  if  he  had  formed  an  opinion 
that  this  would  not  be  finished  before  New  Year's, 
he  would  have  formed  an  opinion  relative  to  the 
case.  It  embraces  all  the  others.  There  was  a 
precedent  for  it,  was  the  reason  vre  allowed  it, 

Mr.  Cutler.  Have  you  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  be 
tried  ? 

Juror.  I  have  said  that  I  have  not — except 
whether  it  is  treason  or  not. 

Mr.  Cutler.  Are  you  sensible  of  any  such 
prejudice  or  bias  therein,  as  may  affect  your  action 
as  a  juror  ? 

Juror.    2ST 0,  sir. 

Mr.  Cutler.  Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment  ? 

Juror.    I  have  not. 

Judge  Grier.  I  had  intended  to  strike  out 
something  in  that  question.  I  think  it  possible 
that  he  might  suppose  some  were  concerned  who 
had  not  anything  to  do  with  it,  and  if  he  had 
formed  an  opinion  about  them,  it  would  come 


within  the  general  words  of  that  question.  But 
proceed  now — thus  far  I  believe  no  injury  has 
arisen  from  it. 

Mr.  Cutler.  Have  you  heard  anything  of  this 
case  which  has  induced  you  to  make  up  your 
mind  as  to  whether  the  offence  charged  in  the 
indictment  constitutes  treason  or  not  ? 

Juror.  Yes,  sir,  on  that  subject  Ihave  formed 
an  opinion. 

Challenged  for  cause. 

Frederick  Hippie  is  called  and  answers.  Not 
challenged  by  the  prisoner. 

Mr.  Ludlow.  I  ask  that  this  juror  be  set  aside 
for  the  present. 

Levi  Merkle  is  called  and  answers.  Not 
challenged  by  the  prisoner. 

Mr.  Ludlow.  We  ask  that  this  juror  be  set 
aside  for  the  present. 

James  Harper  is  called  and  answers.  Sworn 
on  his  voir  (lire. 

Mr.  Cutler.  Have  you  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  be 
tried? 

Juror.  I  have  read  the  newspapers,  and  as 
far  as  they  shed  any  light  upon  the  subject,  I 
have  come  to  the  conclusion  that  the  laws  had 
been  violated  in  Lancaster  county,  and  if  the 
offenders  could  be  identified  thev  should  be  pun- 
ished. 

Judge  Grier.    That  amounts  to  nothing. 

Mr.  Cutler.  Are  you  sensible  of  any  such 
prejudice  or  bias  therein,  as  may  affect  your  ac- 
tion as  a  juror ? 

Juror.    No,  sir. 

Mr.  Cutler.  Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment  ? 

Juror.    No,  sir. 

Mr.  Cutler.  Have  you  heard  anything  of  this 
case  which  has  induced  you  to  make  up  your 
mind  as  to  whether  the  offence  charged  in  the 
indictment  constitutes  treason  or  not  ? 

Juror.  I  have  not — that  belongs  to  the  Court. 
Challenged  by  the  prisoner. 

Paul  S.  Preston  is  called  and  answers.  Not 
challenged  by  the  prisoner. 

Mr.  Ludlow.  I  ask  that  this  juror  be  set  aside 
for  the  present. 

Edward  Davies  is  called  and  answers.  Not 
challenged  by  the  prisoner. 

Mr.  Ludlow.  I  ask  that  this  juror  be  set  aside 
for  the  present. 

Moses  W.  Coolbaugh  is  called  and  answers. 
Sworn  on  his  voir  dire. 

Mr.  Cutler.    Are  you  a  post-master  ? 

Juror.    No,  sir. 

Mr.  Cutler.  Have  you  formed  or  expressed 
anv  ooinion  relative  to  the  matter  now  to  be 
tried  ? 

Juror.  When  the  account  was  published  in 
the  papers,  I  expressed  the  opinion  that  it  was  a 
great  outrage  upon  the  community. 

Mr.  Cutler.  Are  you  sensible  of  any  such 
prejudice  or  bias  therein,  as  may  affect  your  ac- 
tion as  a  juror  ? 

Juror.    Not  at  all,  sir. 


36 


TREASON  CASES. 


Mr.  Cuyler.  Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment  ? 

Juror.    No,  sir. 

Mr.  Cuyler.  Have  you  heard  anything  of 
this  case  which  has  induced  you  to  make  up  your 
mind  as  to  whether  the  offence  charged  in  the 
indictment  constitutes  treason  or  not 

Juror.    No,  sir. 

Challenged  by  the  prisoner. 

David  West  is  called  and  answers. 

Not  challenged  by  the  prisoner. 

Mr.  Ludlow.  I  ask  that  this  juror  be  set 
aside  for  the  present. 

Daniel  0.  Hitner  is  called  and  answers. 

Sworn  on  his  voir  dire. 

Mr.  Cuyler.  Have  your  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  be 
tried  ? 

Juror.    Not  that  I  know  of,  sir. 

Mr.  Cuyler.  Are  you  sensible  of  any  such 
prejudice  or  bias  therein,  as  may  affect  your  ac- 
tion as  a  juror  ? 

Juror.    No,  sir. 

Mr.  Cuyler.  Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment  ? 

Juror.    Not  that  I  know  of,  sir. 

Mr.  Cuyler.  Have  you  heard  anything  of 
this  case  which  has  induced  you  to  make  up  your 
mind  as  to  whether  the  offence  charged  in  the 
indictment  constitutes  treason  or  not? 

Juror.  I  might  have  thought  something 
about  it.  I  dont  know  that  I  have  made  up  my 
mind  about  it. 

Challenged  by  the  prisoner. 

William  R.  Saddler  is  called  and  answers. 

Not  challenged  by  the  prisoner. 

Sworn  on  his  voir  dire. 

Mr.  Ludlow.  Have  you  any  conscientious 
scruples  upon  the  subject  of  capital  punishment, 
so  that  you  would  not,  because  }rou  conscientious- 
ly could  not,  render  a  verdict  of  guilty,  death  be- 
ing the  punishment,  though  the  evidence  required 
such  a  verdict  ? 

Juror.    No,  sir. 

Mr.  Ludlow.  Have  you  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  be 
tried  ? 

Juror.    No,  sir. 

Mr.  Ludlow.  Are  you  sensible  of  any  such 
prejudice  or  bias  therein,  as  may  affect  your  ac- 
tion as  a  juror  ? 

Juror.    I  am  not,  sir. 

Mr.  Ludlow.  Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment  ? 

Juror.  I  am  not  conscious  of  having  done  so. 

Mr.  Ludlow.  Have  you  heard  anything  of 
this  case  which  has  induced  you  to  make  up  your 
mind  as  to  whether  the  offence  charged  in  the 
indictment  constitutes  treason  or  not  ? 


Juror.    No,  sir. 

Mr.  Ludlow.  Have  you  formed  an  opinion 
that  the  law  of  the  United  States,  known  as  the 
Fugitive  Slave  Law  of  1850,  is  unconstitutional, 
so  that  you  cannot,  for  that  reason,  convict  a  per- 
son indicted  for  a  forcible  resistance  thereto,  if 
the  facts  alleged  in  the  indictment  are  proved 
and  the  Court  hold  the  statute  to  be  constitu- 
tional ? 

Juror.    No,  sir, 

Mr.  Ludlow.    Let  him  be  sworn. 
Juror  sworn,  and  takes  his  seat  in  the  box. 
James  M.  Hopkins  is  called  and  answers. 
Not  challenged  by  the  prisoner. 
Sworn  on  his  voir  dire. 

Mr.  Ludlow.  Have  you  any  conscientious 
scruples  upon  the  subject  of  capital  punishment, 
so  that  you  would  not,  because  you  conscien- 
tiously could  not,  render  a  verdict  of  guilty,  death 
being  the  punishment,  though  the  evidence  re- 
quired such  a  verdict? 

Juror.    I  have  not. 

Mr.  Ludlow.    Let  him  be  sworn. 

Juror  sworn,  and  takes  his  seat  in  the  box. 

James  Whitehill  is  called  and  answers. 

Sworn  on  his  voir  dire. 

Mr.  Cuyler.  Have  you  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  be 
tried  ? 

Juror.    I  have  not. 

Mr.  Cuyler.  Are  you  sensible  of  any  such 
prejudice  or  bias  therein,  as  may  affect  your  ac- 
tion as  a  juror  ? 

Juror.    I  am  not,  sir. 

Mr.  Cuyler.  Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment? 

Juror.    I  have  not. 

Mr.  Cuyler.  Have  you  heard  any  thing  of  this 
case  which  has  induced  you  to  make  up  your 
mind  as  to  whether  the  offence  charged  in  the 
indictment  constitutes  treason  or  not  ? 

Juror.  I  have  not,  sir. 

Challenged  by  the  prisoner. 

George  A.  Madeira  is  called. 

Not  challenged  by  the  prisoner. 

Mr.  Ludlow.  I  ask  that  the  juror  may  be  set 
aside  for  the  present. 

William  H.  Keim  is  called  and  answers. 

Not  challenged  by  the  prisoner. 

Mr.  Ludlow.  We  ask  that  this  juror  be  set 
aside. 

William  Stevens  is  called  and  answers. 

Affirmed  on  his  voir  dire. 

Mr.  Cuyler  Have  you  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  be 
tried  ? 

Juror.  I  may,  by  reading  the  newspaper  ac- 
counts, have  formed  some  opinion,  but  not  any- 
thing as  to  the  criminality  of  these  men  who  are 
about  to  be  tried. 

Mr.  Cuyler.  Have  you  or  not,  formed  an 
opinion  relative  to  the  matter  now  to  be  tried  ? 

Juror.  I  have  not  formed  an  opinion  as  to  the 
guilt  or  innocence  of  the  parties,  but  have  formed 
some  opinion  as  to  the  newspaper  accounts. 


UNITED  STATES  V.  HANWAY. 


37 


Mr.  Cutler.  Are  you  sensible  of  any  such  i 
prejudice  or  bias  therein,  as  may  affect  your 
action  as  juror  ? 

Juror.  No. 

Mr.  Cutler.  Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  haTe 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment  ? 

Juror.  No. 

Mr.  Cutler.  Have  you  heard  anything  of  this 
case  which  has  induced  you  to  make  up  your 
mind  as  to  whether  the  offence  charged  in  the 
indictment  constitutes  treason  or  not  ? 

Juror.  No. 

Challenged  by  the  prisoner. 
John  A.  Brown  is  called  and  answered. 
Sworn  on  voir  dire. 

Mr.  Cutler.  Have  you  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  be 
tried? 

Juror.  I  have  read  the  newspaper  account 
and  of  course  have  supposed  the  parties  engaged 
in  that  affair  had  committed  a  breach  of  the 
peace,  but  I  have  neither  formed  nor  expressed  an 
opinion  in  regard  to  the  persons  now  to  be 
tried? 

Mr.  Cutleb.  Are  you  sensible  of  any  such 
prejudice  or  bias  therein,  as  may  affect  your 
action  as  a  juror  ? 

Juror.  No,  sir. 

Mr.  Cutler.  Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment  ? 

Juror.  No,  sir. 

Mr.  Cutler.  Have  you  heard  any  thing  of 
this  case  which  has  induced  you  to  make  up  your 
mind  as  to  whether  the  offence  charged  in  the 
indictment  constitutes  treason  or  not  ? 

Juror.  I  am  not  a  competent  judge  of  what 
treason  is.  I  shall  be  governed  by  the  Court  on 
that  subject ;  I  have  not  made  up  my  mind. 

Challenged  by  the  prisoner. 

Hartman  Kuhn  is  called  and  answers. 

Sworn  on  his  voir  dire. 

Mr.  Cutler.  Have  you  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  be 
tried  ? 

Juror.  I  have. 

Challenge  for  cause. 

Martin  Newcomer  is  called  and  answers. 
Sworn  on  his  voir  dire. 

Mr.  Cutler.  Have  you  any  conscientious 
scruples  upon  the  subject  of  capital  punishment, 
so  that  you  would  not,  because  you  conscienti- 
ously could  not  render  a  verdict  of  guilty,  death 
being  the  punishment,  though  the  evidence  re- 
quired such  a  verdict  ? 

Juror.  I  have  formed  an  opinion  about  this 
subject. 

Challenge  for  cause 

Mr.  Cooper.  That  answer  is  not  enough  of 
itself. 

Judge  Grier.  If  the  other  party  wish  to  par- 
ticularize, they  can  make  further  questions,  but 
if  not,  the  Court  will  let  him  go. 


I  Mr.  Stevens.  We  suppose  that  is  enough  iu 
the  first  instance. 

Judge  Grier.  Let  him  go,  if  you  are  both 
afraid  of  him. 

George  Cadwalader  is  called  and  answers. 
Sworn  on  his  voir  dire. 

Mr.  Cutler.  Have  you  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  be 
tried? 

Juror.  I  cannot  say  that  I  have  not  formed 
any  opinion.  I  have  read  what  has  been  pub- 
lished. 

Mr.  Cutler.  Have  you  formed  an  opinion 
from  what  has  been  read  ? 

Juror.  I  have  impressions  and  perhaps  opin- 
ions. I  have  great  difficulty  in  answering  this 
question.  I  do  not  think  I  have  formed  any 
opinion  which  would  render  me  incapable  of  be- 
ing a  competent  juror. 

Mr.  Cutler.  Are  you  sensible  of  any  such 
prejudice  or  bias  therein,  as  may  affect  your  ac- 
tion as  a  juror  ? 
Juror.  I  am  not. 

Mr.  Cutler.  Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the  ac- 
cused, or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment  ? 
Juror.  I  have  not. 

Mr.  Cutler.  Have  you  heard  any  thing  of  this 
case  which  has  induced  you  to  make  up  your 
mind  as  to  whether  the  offence  charged  in  the 
indictment  constitutes  treason  or  not  ? 
Juror.  No,  I  have  not. 
Challenged  by  the  prisoner. 
Mr.  Ludlow.  We  ask  that  the  juror  called  im- 
mediately before  Mr.  Cadwalader,  should  be  re- 
called, in  order  to  put  to  him  certain  questions, 
which  we  think  necessary  and  which  we  did  not 
put  then.    We  consider  it  essential  to  a  proper 
understanding  of  the  man's  views  upon  the  sub- 
ject.   We  were  about  to  put  the  questions,  when 
the  Clerk  called  Mr.  Cadwalader. 

Judge  Grier.  If  it  was  the  fault  of  the  Clerk, 
it  should  not  injure  you. 

Mr.  Stevens.  When  Mr.  Cadwalader  was 
called,  they  could  have  said  they  wished  him 
postponed.  But  then  this  man  has  been  set 
aside.  I  submit  that  this  is  irregular,  unless 
they  will  allow  us  to  withdraw  challenges." 

Judge  Grier.  I  think  we  refused  them  the 
right  to  withdraw  a  challenge — and  this  is  passed 
now — you  should  have  put  these  questions  at  the 
time.  We  do  not  consider  that  answer  sufficient 
of  itself  to  exclude  a  juror — but  you  can  particu- 
larize it  by  the  other  questions.  If  he  answers 
the  others  in  the  negative,  it  cures  the  effect  of 
the  first. 

Robert  Patterson  is  called  and  answers.  Sworn 
on  his  voir  dire. 

Mr.  Cutler.  Have  you  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  be  tried. 

Juror.  It  is  a  question  very  difficult  for  me  to 
answer — I  have  read  all  the  accounts — I  have 
thought  much  upon  it,  and  conversed  a  good 
deal  upon  it — I  allude  to  the  affair  of  Christiana. 
I  have  decided  impressions,  but  I  cannot  say  I 
I  have  come  to  a  settled  judgment,  I  rarely  do  upon 


88 


TREASON  CASES. 


a  public  matter  like  this,  till  the  facts  alleged  j 
are  either  admitted  or  proved.  I  cannot  say 
that  I  have  formed  an  opinion. 

Mr.  Cuyler.  Are  you  sensible  of  any  such  | 
prejudice  or  bias  therein,  as  may  affect  your  ac- 1 
tion  as  a  juror  ? 

Juror.  None  as  a  juror. 

Mr.  Cuyler.  Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment  ? 

Juror.  None  whatever. 

Mr.  Cuyler.  Have  you  heard  anything  of  this 
case  which  has  induced  you  to  make  up  your 
mind  as  to  whether  the  offence  charged  in  the 
indictment  constitutes  treason  or  not  ? 

Juror.  1  have  not,  I  should  be  governed  as  to 
the  facts  by  the  evidence — and  as  to  treason,  by 
the  Court,  believing  that  they  are  better  qualified 
to  decide  than  I  am. 

Challenged  by  the  prisoner. 

Andrew  K.  Witman  is  called  and  answers. 
Sworn  on  his  voir  dire. 

Mr.  Cuyler.  Have  you  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  be  tried  ? 

Juror.  No,  sir. 

Mr.  Cuyler.  Are  you  sensible  of  any  such 
prejudice  or  bias  therein,  as  may  affect  your 
action  as  a  juror  ? 

Juror.  No  sir. 

Mr.  Cuyler.  Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment  ? 

Juror.  I  have  not. 

Mr.  Cuyler.  Have  you  heard  anything  of  this 
case  which  has  induced  you  to  make  up  your 
mind  as  to  whether  the  offence  charged  in  the 
indictment  constitutes  treason  or  not  ? 

Juror.  I  have  formed  some  opinion  about 
that — I  take  it  to  be  pretty  near  a  similar  case  to 
the  Fries'  matter,  which  happened  at  the  place 
where  I  was  from. 

Challenged  for  cause. 

Mr.  Cooper.  We  do  not  think  this  is  sufficient. 
I  believe  it  was  decided  in  this  very  Court  even, 
that  a  juror  who  sat  in  a  case  where  the  de- 
fendant was  charged  with  an  offence,  could  sit 
and  decide  in  another  case  where  the  defendant 
was  charged  with  the  same  offence.  It  wa3  so  in 
the  case  of  Wilson  and  Porter. 

Mr.  Cuyler.  The  objection  proceeds  upon  the 
supposition  that  this  question  is  wrong,  but  the 
Court  have  decided  that  it  is  a  competent  ques- 
tion, and  his  answer  one  way  or  the  other  is  suf- 
ficient. 

Judge  Grier.  He  can  be  asked  for  an  expla- 
nation of  what  he  has  stated. 

Mr.  Cooper.  Are  you  sensible  of  any  such 
prejudice  or  bias  therein,  as  may  affect  your 
action  as  a  juror  ? 

Judge  Grier.  He  has  already  answered  that 
he  has  not. 

Mr.  Cooper.  It  seems  to  me  then,  that  that 
qualifies  his  opinion. 

Mr.  Stevens.  If  answering  the  third  question 


in  the  negative  is  to  qualify  all  the  rest,  I  cannot 
see  why  the  rest  are  to  be  asked.  I  am  sure  this  i 
Court  and  the  gentlemen  do  not  want  this  sur- 
plus tautology,  which  amounts  to  nothing.  I  un- 
derstand the  juror  to  mean  that  he  looks  upon  the 
Christiana  affair,  as  like  the  affair  of  Fries,  which 
happened  in  his  own  country.  That  has  been 
decided  to  be  treason,  and  the  party  referred  to 
was  convicted.  If  you  can  get  at  a  distinct 
opinion,  this  gentleman  has  formed  a  very  intel- 
ligent, or  at  least  a  very  intelligible  opinion. 

Mr.  Cooper.  (To  the  Juror.)  Have  you  made 
up  your  mind  upon  the  facts  of  this  case  that  this 
is  treason  ? 

Mr.  Stevens.   That  is  not  one  of  the  questions. 

Judge  Grier.  The  witness  has  not  given  a 
direct  answer,  yes  or  no,  and  they  may  ask  an 
explanation  of  it. 

Mr.  Cooper.  Have  you  so  made  up  your  mind 
as  to  the  character  of  the  crime,  that  it  could  not 
be  altered  in  the  course  of  the  trial  ? 

J udge  Grier.  That  is  not  a  proper  question — 
they  must  not  have  the  burden  of  changing  his 
mind.  This  question  would  not  be  a  good  pre- 
cedent except  on  the  ground  that  the  intention 
of  the  parties  concerned  in  a  public  transaction 
of  this  character — the  intention  of  each  and  all 
of  them  is  one  of  the  matters  which  go  to  make 
up  treason.  If  he  had  fully  made  up  his  mind 
that  this  was  not  treason,  it  would  be  an  opinion 
upon  a  portion  of  the  case,  to  wit,  the  intention 
of  the  parties  concerned,  which  would  make  him 
unfit  to  be  a  juror  in  the  case.  Unless  a  man  has 
taken  care  to  inform  himself  upon  the  subject,  he 
may  not  have  formed  an  opinion,  and  I  believe 
plenty  could  be  found  who  have  not.  I  am  sure 
I  have  not  made  up  my  mind. 

Judge  Kane.  I  would  say  in  addition  to  what 
has  been  said  by  Judge  Grier,  that  I  fully  ap- 
preciate the  vast  importance  of  having  jurors 
entirely  unbiassed — without  an  opinion  or  a  de- 
cided impression  even,  upon  any  of  the  points 
involved  in  the  case.  I  can  imagine  that  in  the 
progress  of  these  trials — supposing  them  all  to 
be  brought  before  jurors  in  succession — that  it 
may  become  indispensable  that  a  trial  may  be 
had  to  modify  in  some  degree  hereafter,  what 
have  been  the  rulings  of  the  Court.  If  it  should 
turn  out  in  the  result  that  that  portion  of  the 
community  from  among  whom  our  jurors  must 
be  chosen,  come  to  us  pre-occupied  by  newspa- 
per reports,  but  yet  capable  according  to  their 
best  judgment  of  rendering  a  true  and  faithful 
verdict  according  to  the  law  and  the  evidence,  it 
may  be  indispensable  to  reconsider  what  now  un- 
der a  different  aspect  of  facts  the  Court  may  rule — 
regarding  it  as  so  eminently  desirable  that  if  it 
be  possible,  jurors  in  all  these  cases  should  be 
without  any  bias  on  one  side  or  the  other. 

Judge  Grier.    The  juror  can  go. 

Mr.  Ludlow.  Might  we  not  ask  the  juror  to 
explain  his  answer  ? 

Judge  Grier.    I  thought  we  had  done  that. 

Mr.  Ludlow.    No,  sir,  we  have  not. 

Mr.  Read.  May  it  please  your  honor,  I  think 
here  is  as  satisfactory  an  answer  as  could  be 
given  to  their  question.  He  thought  the  case 
like  that  of  a  particular  individual  who  was  ac- 


UNITED  STATES  V.  HANWAY. 


59 


oused,  tried,  and  convicted  of  treason,  and  par- 
doned by  the  President  of  the  United  States  ; 
and  in  deciding  that,  he  has  passed  upon  the 
question  of  intention,  which  is  a  question  to  oe 
submitted  to  the  jury.  I  opposed  ihis  question 
yesterday,  but  as  your  honors  have  decided  it 
correct,  we  have  only  to  conform  to  it.  The  next 
question  might  be,  "  What  do  you  mean  by  trea- 
son V  which  we  might  find  hard  to  answer  ;  but 
here  the  juror  has  given  the  case  of  a  man  ac- 
cused, tried,  and  convicted,  and  pardoned  for 
treason  ;  there  can  be  no  difficulty  about  the  in- 
tention. 

Mr.  Ashmead.  I  should  like  to  have  this 
gentleman  explain  hs  view  fully,  though  it  is  not 
in  this  particular  case,  but  it  is  as  to  the  effect 
of  this  upon  the  further  proceedings  that  I  am 
anxious. 

Judge  Grier.  After  this  case  has  been  ex- 
amined and  passed  upon  by  the  court  and  jury, 
it  will  be  almost  impassible  that  any  of  these 
jurors  should  not  have  formed  an  opinion  as  to 
the  law,  and  we  do  not  say  that  we  shall  hold  to 
this  question  hereafter. 

Mr.  Ashmead.    That  was  what  I  wanted  to 
guard  against.    If  this  is  determined  to  be  trea-  ' 
son  or  not,  by  the  Court,  all  the  other  jurors 
would  take  their  impression  from  it. 

Judge  Grier.    He  was   discharged  by  the  | 
court  telling  him  to  go,  supposing  that  you  did 
not  want  to  ask  him  anything  else. 

Mr.  Ashmead.  I  wanted  him  to  explain  what 
he  meant. 

Judge  Grier.  I  think  you  had  better  let  it 
go.  The  reason  we  explained  this  question  is, 
that  there  has  been  an  attempt  to  fix  certain 
things  in  the  public  mind  on  this  subject,  to  an- 
ticipate the  decision  of  this  Court  and  jury.  This 
morning,  my  hands,  by  the  post-office,  have  been 
filled,  from  what  is  called  the  Athens  of  America, 
with  a  great  deal  of  light  upon  the  subject,  for 
which  I  cant  say  I  have  any  particular  thanks  to 
render ;  but  they  will  cause  me  to  say  to  the 
jury,  avoid  all  papers  coming  from  that  direc- 
tion. They  are  undertaking  now  to  try  to  settle 
how  this  trial  should  go,  thinking,  perhaps,  that 
we  have  not  the  same  degree  of  illumination  here 
as  they  have  there. 

Mr.  Stevens.  I  hope  your  honor  will  extend 
your  caution  to  missives  from  another  quarter. 

Judge  Grier.  We  do  not  want  them  from  auy 
quarter. 

Mr.  Stevens.  We  have  seen  a  few  from  an- 
other direction,  but  they  have  not  convinced  me 
more  than  the  others  have  convinced  your 
honor. 

Judge  Grier.  They  have  all  come  from  the 
other  quarter  to  me.  There  is  an  attempt  to 
prejudice  the  public  mind,  and  through  that  the 
mind  of  the  jury  and  Court  on  this  subject.  That 
is  the  reason  why  more  searching  questions  have 
been  allowed  than  usual. 

Mr.  Ashmead.  We  should  like  the  gentlemen 
to  specify  any  of  those  he  has  seen  from  the 
other  quarter. 

David  Cockley  is  called  and  answers. 

Affirmed  in  his  voir  dire. 

Mr.  Cutler.    Have  you  formed  or  expressed 


any  opinion  relative  to  the  matter  now  to  be 
tried  2 

Juror.    I  have. 

Challenged  for  cause. 

James  Penny  is  called  and  answers. 

Not  challenged  by  the  prisoner. 

Mr.  Ludlow.  We  ask  that  this  juror  be  set 
aside. 

Ferree  Brinton  is  called  and  answers. 
Not  challenged  by  the  prisoner. 
Mr.  Ludlow.    I  ask  that  this  juror  be  set 
aside  for  the  present. 

Patrick  Brady  is  called  and  answers. 
Sworn  on  his  voir  dire. 

Mr.  Cutler.  Have  you  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  be 
tried  ? 

Juror.    I  have. 

Challenged  for  cause. 

Mr.  Lcdlow.  I  will  put  two  or  three  of  the 
other  questions.  Are  you  sensible  of  any  such 
prejudice  or  bias  therein,  as  may  affect  your  ac- 
tion as  a  juror  ? 

Juror.    I  am  not. 

Mr.  Ludlow.  Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment  ? 

Juror.    I  have  not. 

Mr.  Ludlow.  Have  you  heard  anything  of 
this  case  which  has  induced  you  to  make  up  your 
mind  as  to  whether  the  offence  charged  in  the 
indictment  constitutes  treason  or  not  ? 

Juror.    I  have  not. 

Mr.  Ludlow.  We  submit,  that  on  the  an- 
swers the  juror  has  given,  he  is  qualified  to  sit 
as  a  juror  ? 

Judge  Grier.  He  has  sufficiently  explained 
his  first  answer  ;  we  think  it  is  not  material. 

Mr.  Stevens.  The  juror  says  he  has  formed 
an  opinion,  and  yet  answers  in  the  negative  to 
all  the  other  questions.  I  should  like  to  know 
what  the  opinion  is. 

Juror.  I  have  formed  an  opinion  upon  the 
outrage  against  the  laws  in  the  Christiana  af- 
fair. 

Mr.  G.  L.  Ashmead.  I  think  the  counsel  have 
not  the  right  to  ask  him  what  his  opinion  is,  if 
he  says  it  is  not  such  as  to  affect  his  action  as  a 
juror  in  this  case. 

Mr.  Stevens.  Am  I  to  understand,  then, 
that  we  are  confined  to  these  questions  ? 

Judge  Grier.  If  he  does  not  give  a  direct  an- 
swer, you  may  ask  an  explanation.  I  consider 
the  subsequent  questions  as  particularizing  the 
first,  and  if  he  answers  them  in  the  negative,  the 
first  amounts  to  nothing. 

Mr.  Stevens.  I  may  ask,  then,  what  he 
means  by  his  first  answer  ? 

Juror.  That  the  laws  were  outraged  in  this 
Christiana  case. 

Judge  Grier.  That  is  no  reason  for  exclud- 
ing him  :  I  suppose  every  man  in  the  community 
has  formed  that  opinion. 

Juror  challenged  by  the  prisoner. 

John  0.  Deshong  is  called  and  answers. 

Not  challenged  by  the  prisoner 


40 


TREASON  CASES. 


Mr.  Ludlow.  I  ask  that  the  juror  be  set 
aside  for  the  present. 

George  Mark  is  called  and  answers. 

Not  challenged  by  the  prisoner. 

Mr.  Ludlow.    I  ask  that  he  may  be  set  aside. 

Strange  N.  Palmer  is  called  and  answers. 

Not  challenged  by  the  prisoner. 

Sworn  on  his  voir  dire. 

Mr.  Ludlow.  Have  you  any  conscientious 
scruples  upon  the  subject  of  capital  punishment, 
so  that  you  would  not,  because  you  conscien- 
tiously could  not  render  a  verdict  of  guilty,  death 
being  the  punishment,  though  the  evidence  re- 
quired such  a  verdict  ? 

Juror.  I  have  long  cherished  scruples  of 
conscience  on  the  subject;  not  such,  however, 
as  having  voluntarily  taken  the  oath  of  a  juror, 
would  induce  me  to  violate  that  oath,  having 
voluntarily  taken  the  oath. 

Mr.  Ludlow.  Have  you  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  be 
tried  ? 

Juror.  As  editor  of  a  public  paper,  I  have 
read  and  published  very  considerably  upon  the 
subject,  and  have  necessarily  formed  some  con- 
clusions ;  not  as  to  the  guilt  or  innocence  of  the 
parties,  however. 

Mr.  Ludlow.  Are  you  sensible  of  any  such 
prejudice  or  bias  therein,  as  may  affect  your  ac- 
tion as  a  juror  ? 

Juror.    I  am  not. 

Mr.  Ludlow.  Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment  ? 

Juror.  I  have  not,  for  I  know  nothing  of  them. 

Mr.  Ludlow.  Have  you  formed  an  opinion 
that  the  law  of  the  United  States,  known  as  the 
Fugitive  Slave  Law  of  1850,  is  unconstitutional, 
so  that  you  cannot  for  that  reason,  convict  a 
person  indicted  for  a  forcible  resistance  thereto, 
if  the  facts  alleged,  in  the  indictment  are  proved, 
and  the  court  hold  the  statute  to  be  constitu- 
tional ? 

Juror.    I  have  not. 

Mr.  G.  L.  Ashmead.  What  do  mean,  when 
you  say,  having  taken  the  oath  voluntarily  ? 

Juror.  I  mean,  I  cannot  voluntarily  take  the 
oath. 

Mr.  Ashmead.  If  you  were  sworn  in  this 
jury  box,  you  would  not  take  the  oath  volun- 
tarily? 

Juror.  I  dont  know  that  I  may  called  to  do 
that.  I  cannot  conscientiously  take  the  oath ; 
but,  having  taken  it;  I  would  feel  bound  by  it,  it 
without  reference  to  the  death  penalty,  I  should 
take  the  oath,  and  then  the  question  should  come 
up,  I  would  feel  bound  by  my  oath. 

Mr.  Ashmead.  If  you  take  your  oath  upon 
this  jury,  would  it  be  voluntarily  ? 

Juror.  It  has  not  arrived  at  that  point,  and 
I  cannot  give  my  opinion. 

Judge  Grier.  Wait  till  the  oath  is  tendered 
to  him,  and  then  he  can  say  that. 

Mr.  Ashmead.  I  wish  him  to  explain;  he 
said  if  he  took  the  oath  voluntarily,  his  opinion 
would  be  so  and  so.  1 


J uror.  I  said  at  the  same  time,  that  I  could 
not  take  it  voluntarily. 

Mr.  Ludlow.  I  ask  that  this  juror  be  set 
aside  for  the  present. 

Franklin  Starbird  is  called  and  answers.  Not 
challenged  by  the  prisoner. 

Mr.  Ludlow.    I  ask  that  he  be  set  aside. 

Isaac  Mather  is  called  and  answers.  Not 
challenged  by  the  prisoner. 

Mr.  Ludlow.  I  ask  that  the  juror  be  set  aside 
for  the  present. 

John  B.  Rutherford  is  called  and  answers. 

Not  challenged  by  the  prisoner. 

Mr.  Ludlow.  I  ask  that  he  may  be  set  aside 
for  the  present. 

Diller  Luther  is  called  and  answers.  Sworn 
on  his  voir  dire. 

Mr.  Cuyler.  Have  you  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  be 
tried  ? 

Juror.  I  have  formed  no  conclusive  opinion  ; 
what  impressions  were  made  upon  my  mind  by 
the  accounts  at  the  time,  I  have  expressed. 

Mr.  Cuyler.  Are  you  sensible  of  any  such 
prejudice  or  bias  therein,  as  may  affect  j  our  ac- 
tion as  a  juror? 

Juror.    I  am  net. 

Mr.  Cuyler.  Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment? 

Juror.    No,  sir. 

Mr.  Cuyler.  Have  you  heard  anything  of 
this  case  which  has  induced  you  to  make  up  your 
mind  as  to  whether  the  offence  charged  in  the 
indictment  is  treason  or  not  ? 

Juror.    I  have  not. 

Challenged  by  the  prisoner. 

James  Gowen  is  called  and  answers.  Sworn 
on  his  voir  dire. 

Mr.  Cuyler.  Have  you  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  be 
tried? 

Juror.  I  may  have  expressed  an  opinion  in 
relation  to  the  subject  being  a  bad  transaction, 
but  I  have  not  expressed  an  opinion  as  to  the 
guilt  of  the  prisoner.  I  have  been  talking  of  the 
subject  frequently.  I  may  have  merely  said  it 
was  a  shocking  bad  action. 

Mr.  Cuyler.  Are  you  sensible  of  any  such 
prejudice  or  bias  therein,  as  may  affect  your 
action  as  a  juror  ? 

Juror.    No,  sir. 

Mr.  Cuyler.  Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment  ? 

Juror.    No,  sir. 

Mr.  Cuyler.  Have  you  heard  anything  of  this 
case  which  has  induced  you  to  make  up  your 
mind  as  to  whether  the  offence  charged  in  the 
indictment  constitutes  treason  or  not? 

Juror.  I  have  not  come  to  a  conclusion  upon 
that  subject.  I  have  heard  it  spoken  of,  and 
have  spoken  of  it.  It  is  merely  an  impression 
on  my  mind  in  regard  to  it. 


UNITED   STATES  V.  HANWAY. 


Mr.  Stevens.  Have  you  expressed  an  opinion  - 
as  to  whether  it  was  treason  or  not  ? 

Juror.    I  think  I  have  not. 

Mr.  Stevens.    Have  you  made  up  your  mind?  j 

Juror.  I  cannot  say  that  I  have  made  up  my  i 
mind.  Under  the  circumstances  in  which  I  am  i 
now.  I  could  not  say  that  I  have  made  up  my  j 
mind.  I  may  have  an  impression  in  relation  to  it. 

Mb.  Stevens.  What  circumstances  do  you 
mean  ? 

Juror.    As  a  juror. 

Me.  Stevens.    Before  you  came  into  the  court 
room,  had  you  ? 
Juror.    No,  sir. 

Judge  Geier.  Have  you  made  up  your  mind  j 
upon  that  question  ? 

Juror.  No,  sir  ;  I  have  had  an  impression  in 
relation  to  it,  as  to  whether  it  was  treason. 

Challenged  by  the  prisoner. 

David  Lyons  is  called  and  answers.  Sworn 
on  his  voir  dire. 

Mr.  Cuyler.  Have  you  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  be 
tried? 

Jueor.  I  certainly  have  expressed  an  unfa- 
vorable opinion  towards  the  course  of  these  gen- 
tlemen. 

Mr.  Stevens.  We  ask  that  he  shall  be  set 
aside. 

Mr.  Ludlow.  Are  you  sensible  of  any  such 
prejudice  or  bias  therein,  as  may  affect  your 
action  as  a  juror  ? 

Juror.    Not  at  all. 

Mr.  Ludlow.  Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment  ? 

Juror.    No,  sir. 

Mr.  Ludlow.  Have  you  heard  any  thing  of 
this  case  which  has  induced  you  to  make  up 
your  mind  as  to  whether  the  offence  charged  in 
the  indictment  constitutes  treason  or  not  ? 

Juror.  I  have  not.  I  dont  presume  to  be  the 
judge  of  that  matter. 

Mr.  Ludlow.    He  is  a  competent  juror. 

Mr.  Stevens.  The  first  answer  it  seems  to 
me,  is  sufficient  to  set  him  aside ;  he  has  ex- 
pressed an  unfavorable  opinion  as  to  the  course 
of  these  gentlemen. 

Judge  Grier.  I  understand  him,  as  to  this 
transaction. 

Mr.  Stevens.  He  comes  here  prejudiced 
against  them :  he  is  certainly  not  above  all  bias. 

Mr.  Ludlow.  He  has  qualified  the  first  by  his 
answer  to  the  others. 

Judge  Grier.  The  vagueness  and  generality 
of  the  first  is  shown, by  his  answering  all  the 
others  in  the  negative,  and  it  only  shows  what 
we  have  said  before. 

Mr.  Read.  He  has  expressed  an  unfavorable 
opinion  of  the  course  of  these  gentlemen — that 
is,  of  Mr.  Hanway. 

Juror.    In  that  particular  act. 

Judge  Kane.  One  word  has  been  referred  to, 
in  the  remarks  which  I  think  did  not  fall  from 
the  juror.  What  was  your  observation  in  re- 
gard to  the  transaction  ? 

6 


Mr.  Lewis.  I  have  it  sir.  He  said,  "  I  have 
expressed  an  unfavorable  opinion  of  these  gentle- 
men''— was  not  that  it  ? 

Juror.    Yes,  sir. 

Mr.  Read.  He  would  go  into  the  jury  box 
unfavorably  impressed  towards  the  prisoner. 
The  object  in  Burr's  trial — and  I  believe  it  is 
the  wish  of  your  honors,  to  have  those  who 
have  not  expressed  a  favorable  or  unfavorable 
opinion. 

Judge  Grier.  Suppose  a  man  has  been  in- 
formed that  a  burglary  or  arson  has  been  com- 
mitted, and  he  has  said' 'the fellow  who  did  that 
ought  to  be  sent  to  the  Penitentiary"-would  that 
make  him  incapable  of  being  a  juror?  If  he  has 
expressed  an  unfavorable  opinion  as  to  this  de- 
fendant, it  would,  but  if  it  was  a  general  opinion 
as  to  this  transaction,  it  would  not  incapacitate 
him. 

Mr.  Read.  (To  the  juror.)  Who  did  you 
mean  by  "these  gentlemen" — did  you -mean  to 
include  Castner  Hanway  ? 

Juror.    I  knew  none  of  them  individually. 

Mr.  Read.    Did  you  read  their  names? 

Juror.  Yes,  I  had  seen  the  names  of  some 
published. 

Mr.  Read.  Did  you  see  the  name  of  Castner 
Hanway  published  ? 

Juror.    It  is  likely  I  did. 

Judge  Grier.    Do  you  know  him? 

Juror.    No,  sir. 

Judge  Grier.  Have  you  ever  expressed  an 
opinion  as  to  his  guilt  or  innocence  in  the  mat- 
ter? 

Juror.    No.  sir. 

Judge  Grier.  Did  you  mean  to  express  any 
thing  more  than  an  opinion  against  the  transac- 
tion, and  that  the  persons  engaged  in  it  ought  to 
be  punished  ? 

Juror.    No,  sir. 

Judge  Grier.  Then  I  do  not  consider  that, 
taken  with  his  answer  to  the  other  questions,  is 
sufficient  to  exclude  him. 

Challenged  by  the  prisoner. 

John  S.  Shroeder  is  called  and  answers. 

Sworn  on  his  voir  dire. 

Mr.  Cuyler.  Have  you  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  be 
tried  ? 

Juror.    I  have  not. 

Mr.  Cutler.  Are  you  sensible  of  any  such 
prejudice  or  bias  therein  as  may  affect  your 
action  as  a  juror  ? 

Juror.    No,  sir. 

Mr.  Cutler.  Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment  ? 

Juror.    I  have  not,  that  I  am  aware  of. 

Mr.  Cutler.  Have  you  heard  anything  of 
this  case  which  has  induced  you  to  make  up  your 
mind  as  to  whether  the  offence  charged  in  the 
indictment  constitutes  treason  or  not? 

Juror.    I  have  not. 

Challenged  by  the  prisoner. 

Jacob  Grosh  is  called  and  answers. 

Not  challenged  by  the  prisoner. 


42 


TREASON  CASES. 


Mr.  Ludlow.  We  ask  that  this  juror  may  be 
set  aside  for  the  present. 

John  Junkin  is  called  and  answers. 

Not  challenged  by  the  prisoner. 

The  juror  is  sworn  on  his  voir  dire. 

Me.  Ludlow.  Have  you  any  conscientious 
scruples  upon  the  subject  of  capital  punishment, 
so  that  you  would  not,  because  you  conscien- 
tiously could  not  render  a  verdict  of  guilty, 
death  being  the  punishment,  though  the  evidence 
required  such  a  verdict  ? 

Juror.    No,  sir. 

Mr.  Ludlow.  Have  you  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  be 
tried? 

Juror.    I  have  not. 

Mr.  Ludlow.  Are  you  sensible  of  any  such 
prejudice  or  bias  therein,  as  may  affect  your 
action  as  a  juror  ? 

Juror.    No,  sir. 

Mr.  Ludlow.  Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment  ?  ° 

Juror.    I  have  not 

Mr.  Ludlow.  Have  you  heard  anything  of 
this  case  which,  has  induced  you  to  make  up 
your  mind  as  to  whether  the  offence  charged  in 
the  indictment  constitutes  treason  or  not  ? 

Juror.    Oh,  no. 

Mr.  Ludlow.  Have  you  formed  an  opinion 
that  the  law  of  the  United  States,  known  as  the 
Fugitive  Slave  Law  of  1850,  is  unconstitutional, 
so  that  you  cannot  for  that  reason,  convict  a  per- 
son indicted  for  a  forcible  resistance  thereto,  if 
the  facts  alleged  in  the  indictment  are  proved 
and  the  Court  hold  the  statute  to  be  constitu- 
tional ? 

Juror.  Well,  that  I  would  take  from  the  Court. 
Mr.  Ashmead.  Let  the  juror  be  sworn. 
Juror  sworn,  and  takes  his  seat  in  the  box. 
Jacob  Kichline  is  called  and  answers. 
The  juror  was  sworn  on  his  voir  dire. 
Mr.  Cuyler.  Have  you  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  be  tried  ? 
Juror.  No  sir. 

Mr.  Cuyler.  Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment  ? 

Juror.  No,  sir. 

Mr.  Cuyler.  Have  you  heard  anything  of  this 
case  which  has  induced  you  to  make  up  your 
mind  as  to  whether  the  offence  charged  in  the 
indictment  constitutes  treason  or  not  ? 

Juror.  No,  sir. 

Challenged  by  the  prisoner. 

George  Ladley  is  called  and  answers. 

Not  challenged  by  the  prisoner. 

Mr.  Ludlow.  We  ask  that  this  Juror  may  be 
set  aside  for  the  present. 

John  H.  Kinnard  is  called  and  answers. 

The  juror  is  sworn  on  his  voir  dire. 

Mr.  Cuyler.  Have  you  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  be  tried  ? 

Juror.  Not  that  I  am  aware  of. 


Mr.  Cuyler.  Are  you  sensible  of  any  such 
prejudice  or  bias  therein,  as  may  affect  your 
action  as  a  juror  ? 

Juror.  No,  sir. 

Mr.  Cuyler.  Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment  ? 

Juror.  Not  that  I  know  of. 

Mr.  Cuyler.  Have  you  heard  anything  of  this 
case  which  has  induced  you  to  make  up  your 
mind  as  to  whether  the  offence  charged  in  the 
indictment  constitutes  treason  or  not? 

Juror.  No,  sir. 

Not  challenged  by  the  prisoner. 

Mr.  Ludlow.  We  ask  that  this  juror  may  be 
set  aside  for  the  present. 

Crier.  The  panel  is  exhausted. 

Mr.  Ashmead.  The  Marshal  informed  me  that 
there  were  83  in  attendance,  and  only  82  have 
been  called. 

William  Stavely  is  called  and  answers. 

The  juror  is  sworn  on  his  voir  dire. 

Mr.  Cuyler.  Have  you  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  be 
tried  ? 

Juror.  I  have  not  sir. 

Mr.  Cuyler.  Are  you  sensible  of  any  such 
prejudice  or  bias  therein,  as  may  affect  your  ac- 
tion as  a  juror. 

Juror.  I  have  not. 

Mr.  Cuyler.  Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment  ? 

Juror.  I  have  not. 

Mr.  Cuyler.  Have  you  heard  anything  of  this 
case  which  has  induced  you  to  make  up  your 
mind  as  to  whether  the  offence  charged  in  the 
indictment  constitutes  treason  or  not  ? 

Juror.  No,  sir. 

Challenged  by  the  prisoner. 

John  Miller  is  called  and  answers. 

Juror.  If  the  Court  please  I  am  in  a  bad  state 
of  health.  Even  coming  one  square  I  have  got 
a  pressure  on  my  chest,  and  I  am  subject  to  a 
chronic  disease. 

Judge  Grier.  What  is  your  age  ? 

Juror.  I  am  in  my  68th  year. 

Judge  Grier.  I  suppose  you  can  stand  excused 
for  the  term. 

Mr.  Ashmead.  Let  the  absentees  be  called 
again. 

Marshal.  There  are  only  three  absent,  now  viz. 
Ptobert  Butler. 
Abraham  R.  McHvaine. 
Isaac  Meyers. 
Judge  Grier.  Let  the  first  juror  that  was  set 
aside  yesterday  be  called ;  I  believe  that  is  the 
order  of  business. 

Mr.  Ashmead.  Yes,  sir. 
Solomon  Newman  is  called  and  answers. 
The  juror  is  sworn  on  his  voir  dire. 
Mr.  Ludlow.   Have  you  any  conscientious 
scruples  upon  the  subject  of  capital  punishment, 
so  that  you  would  not,  because  you  conscien- 


UNITED  STATE? 


HAXWAT. 


43 


tiously  could  not  render  a  verdict  of  guilty,  death 
being  the  punishment,  though  the  evidence  re- 
quired such  a  yerdict  ? 

JUEOE.  No. 

Mr.  Ludlow.  Have  you  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  be 
tried  ? 

Jubob.  Not  that  I  know  of. 

Mb.  Ludlow.  Are  you  sensible  of  any  such 
prejudice  or  bias  therein,  as  may  affect  your  ac- 
tion as  a  juror  '1 

Jubob.  I  think  not. 

Ms.  Ludlow.  Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment '? 

Jueoe.  I  have  not. 

Me.  Ludlow.  Have  you  heard  anything  of  this 
case  which  has  induced  you  to  make  up  your 
mini  as  to  whether  the  offence  charged  in  the 
indictment  constitutes  treason  or  not? 

Jubob.  No,  sir. 

Me.  Ludlow.  Have  you  formed  an  opinion 
that  the  law  of  the  United  States,  known  as  the 
Fugitive  Slave  Law  of  1850,  is  unconstitutional, 
so  that  you  cannot,  for  that  reason,  convict  a 
person  indicted  for  a  forcible  resistance  thereto, 
if  the  facts  alleged  in  the  indictment  are  proved 
and  the  Court  hold  the  statute  to  be  constitu- 
tional ? 

Jueoe.  I  think  not. 

Ms.  Askmead.  Let  the  juror  be  sworn. 
The  juror  is  sworn  and  takes  his  seat  in  the 
box. 

David  George  is  called  and  answers. 

The  juror  affirms  on  his  voir  dire. 

Ms.  Ludlow.  Have  you  any  conscientious 
scruples  upon  the  subject  of  capital  punishment, 
so  that  you  would  not,  because  you  conscien- 
tiously could  not  render  a  verdict  of  guilty,  death 
being  the  punishment,  though  the  evidence  re- 
quired such  a  verdict  ? 

Jueoe.  I  have. 

Ms.  Ludlow.  Challenged  for  cause  by  the 
United  States. 

Jonathan  Wainwright  is  called  and  answers. 

The  juror  affirms  on  his  voir  dire. 

Ma.  Ludlow.  Have  you  any  conscientious 
scruples  upon  the  subject  of  capital  punishment, 
so  that  you  would  not,  because  you  conscien- 
tiously could  not  render  a  verdict  of  guilty,  death 
being  the  punishment,  though  the  evidence  re- 
quired such,  a  verdict  ? 

Jueoe.  No,  sir. 

Me.  Ludlow.  Have  you  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  be 
tried  ? 

Jueoe.  No,  sir. 

Me.  Ludlow.  Are  you  sensible  of  any  such 
prejudice  or  bias  therein,  as  may  affect  your  ac- 
tion as  a  juror. 

Jueoe.  No  sir. 

Ms.  Ludlow.  Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment  ? 


Jueoe.    No,  sir. 

Me.  Ludlow.  Have  you  heard  anything  of 
this  case  which  has  induced  you  to  make  up 
your  mind  as  to  whether  the  offence  charged  in 
the  indictment,  constitutes  treason  or  not  ? 

Jueoe.    No,  s«\ 

Ms.  Ludlow.  Have  you  formed  an  opinion 
that  the  law  of  the  United  States,  known  as  the 
Fugitive  Slave  Law  of  1850,  is  unconstitutional, 
so  that  you  cannot  for  that  reason,  convict  a 
person  indicted  for  a  forcible  resistance  thereto, 
if  the  facts  alleged  in  the  indictment  are  proved, 
and  the  Court  hold  the  statute  to  be  constitu- 
tional ? 

Jueoe.    No,  sir. 

Judge  Geiee.    Let  the  juror  be  sworn. 
Juror  is  sworn  and  takes  his  seat  in  the  box. 

Me.  Fie  ad.  Does  your  honor  understand  that 
we  have  exhausted  our  peremptory  challenges, 
and  that  we  are  not  allowed  to  chaLenge  ?  I  ask 
the  Court,  merely  to  know  the  rule  as  to  whether 
we  have  a  right  to  challenge  the  jurors  that  have 
been  set  aside,  or  whether  we  have  waived  our 
right  of  peremptory  challenge  ? 

Mb.  Ashkead.    That  is  the  rule  every  where. 

Judge  Geiee..  I  will  hear  you  on  that  question; 
I  had  supposed  that  having  once  exercised  your 
right,  you  could  not  have  it  again  ;  but  I  will  not 
say  so  definitely,  if  you  choose  to  argue  the 
point ;  or  show  a  precedent. 

Ms.  Lewis.  I  apprehend  the  rule  is  to  the 
contrary.  That  is  to  say,  the  right  to  challenge 
is  not  exhausted  until  thirty-five  are  challenged. 

Judge  Geiee.  You  cannot  have  used  that 
right  and  still  retain  it. 

Ms.  G.  L.  Ashmead.  I  understand  the  defence 
distinctly  said  "not  challenged''  va.  the  first  place. 
That  is  enough. 

Judge  Kaxel.  The  Court  would  perhaps  allow 
the  challenge  for  cause,  if  there  were  some  mani- 
fest prejudice,  but  under  no  other  consideration. 

Judge  Gelee.  I  understand  by  calling  him 
you  choose  to  elect  him  as  your  juror,  if  not 
challenged  for  cause.  Not  having  done  so,  as 
far  as  this  juror  is  concerned,  you  have  exercised 
your  right. 

Ephraim  Fenton  is  called  and  answers. 

The  juror  affirms  on  his  voir  dire. 

Me.  Ludlow.  Have  you  any  conscientious 
scruples  upon  the  subject  of  capital  punishment 
so  that  you  would  not,  because  you  conscientiously 
could  not  render  a  verdict  of  guilty,  death  being 
the  punishment,  though  the  evidence  required 
such  a  verdict  ? 

Jueoe.  .1  am  opposed  to  capital  punishment, 
but  I  think  it  would  be  my  duty  under  the  law 
and  the  charge  of  the  Court. 

Me.  Ludlow.  Have  you  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  be 
tried  ? 

Jueoe.  No  more  than  what  I  have  formed 
from  seeing  the  newspapers. 

Me.  Ludlow.  Are  you  sensible  of  any  pre- 
judice or  bias  therein,  as  may  affect  your  action 
as  a  juror  ? 

Jueoe.    No,  sir. 

Ms.  Ludlow.  Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 


'44 


TREASON  CASES. 


accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
against  him  in  the  indictment  ? 
Juror.    No,  sir. 

Mr.  Ludlow.  Have  you  heard  anything  of 
this  case  which  has  induced  you  to  make  up 
your  mind  as  to  whether  the  offence  charged  in 
the  indictment  constitutes  treason  or  not  ? 

Juror.  I  should  of  course  take  that  from  the 
Court. 

Mr.  Ludlow.  Have  you  formed  an  opinion 
that  the  law  of  the  United  States,  known  as  the 
Fugitive  Slave  Law  of  1850,  is  unconstitutional, 
so  that  you  cannot  for  that  reason,  convict  a 
person  indicted  for  a  forcible  resistance  thereto, 
if  the  facts  alleged  in  the  indictment  are  proved 
and  the  Court  hold  the  statute  to  be  constitu- 
tional ? 

Juror.  I  should  take  what  is  said  by  the 
Court  as  the  law  and  be  governed  by  it. 

The  juror  is  affirmed,  and  takes  his  seat  in  the 
box. 

James  Cowden  is  called  and  answers. 

The  juror  is  sworn  on  his  voir  dire. 

Mr.  Ludlow.  Have  you  any  conscientious 
scruples  upon  the  subject  of  capital  punishment, 
so  that  you  would  not,  because  you  conscientiously 
could  not  render  a  verdict  of  guilty,  death  being 
the  punishment,  though  the  evidence  required 
such  a  verdict  ? 

Juror.    No,  sir. 

Mr.  Ludlow.  Have  you  formed  or  expressed 
any  opinion  relative  to  the  matter  now  to  be 
tried  ? 

Juror.  I  have  not  formed  any  opinion  as  to 
the  merits  of  the  case  at  all. 

Mr.  Ludlow.  Are  you  sensible  of  any  such 
prejudice  or  bias  therein,  as  may  affect  your 
action  as  a  juror  ? 

Juror.    I  am  not. 

Mr.  Ludlow.  Have  you  formed  or  expressed 
any  opinion  as  to  the  guilt  or  innocence  of  the 
accused,  or  of  the  other  persons  alleged  to  have 
participated  with  him  in  the  offence  charged 
in  the  indictment  ? 

Juror.    No,  sir. 

Mr.  Ludlow.  Have  you  heard  anything  of 
this  case  which  has  induced  you  to  make  up 
your  mind  as  to  whether  the  offence  charged  in 
the  indictment  constitutes  treason  or  not  ? 

Juror.  I  have  read  some  examinations  of 
the  questions  of  what  constitutes  treason,  but 
have  not  come  to  any  conclusion  or  the  subject 
with  reference  to  this  case. 

Mr.  Ludlow.  Have  you  formed  an  opinion 
that  the  law  of  the  United  States,  known  as  the 
Fugitive  Slave  Law  of  1850,  is  unconstitutional, 
so  that  you  cannot  for  that  reason,  convict  a  per- 
son indicted  for  a  forcible  resistance  thereto,  if 
the  facts  alleged  in  the  indictment  are  proved 
and  the  Court  hold  the  statute  to  be  constitu- 
tional ? 

Juror.  No,  sir. 

Mr.  Cooper.  We  desire  to  put  an  additional 
question  to  the  juror,  so  that  he  may  explain 
himself  with  reference  to  his  answer  to  the  first 
question.  He  said,  he  says  he  has  not  made  up 
his  mind  as  to  the  merits  of  this  particular  case, 


and  I  desire  to  ask  him  the  question  whether  ha 
has  made  up  or  expressed  an  opinion  in  relation 
to  the  transaction  generally  at  Christiana  which 
took  place  there  in  September  last  ? 

Juror.  I  can  explain  it  very  soon. 

Mr.  Cooper.  The  object  is  to  ascertain,  as  we 
have  seen  that  the  juror  does  not  comprehend 
the  question.  We  would  put  this  merely  to  have 
an  answer  from  the  juror,  whether  he  answered 
in  reference  to  this  transaction  or  to  any  other. 

Judge  Grier.  He  can  be  asked. 

Juror.  I  only  wished  to  avoid  the  generality 
of  the  question,  as  to  the  time  it  would  take  to 
try  it.    That  is  all  I  meant  by  the  answer. 

Mr.  Ashmead.  I  understand  you  to  say,  that 
upon  this  matter  of  law,  you  had  formed  no 
opinion,  but  that  you  would  be  willing  to  take 
the  law  upon  that  subject  from  the  Court.  Is 
that  so  ? 

Juror.  Yes,  sir. 

Mr.  Ashmead.    Let  the  juror  be  sworn. 

Mr.  Cooper.  It  being  now  very  near  the  hour 
of  adjournment,  I  would  suggest  the  propriety  of 
not  swearing  the  juror  last  called,  so  that  the 
panel  being  still  incomplete,  it  may  not  be  neces- 
sary to  detain  the  jury  in  the  charge  of  the  officer, 
and  they  may  be  allowed,  to  separate  and  make 
their  necessary  arrangements  before  the  opening 
ofthe  Court  on  Friday  morning,  when  I  presume 
your  honors  willorder  them  into  strict  charge.  I 
make  this  suggestion  solely  for  the  convenience 
of  the  gentlemen  who  have  beenimpanneled ;  many 
of  whom  being  at  a  distance  from  home,  would  find 
it  extremely  unpleasant,  to  be  detained  for  a  whole 
day,  without  having  had  some  previous  notice. 

Judge  Grier.  To-morrow  being  the  day  ap- 
pointed by  the  Governor  of  this  State,  (and  I 
believe  of  every  one,)  as  a  day  of  public  thanks- 
giving, I  wish  as  far  as  possible  to  show  respect 
to  the  orders  of  the  Governor  ;  and  as  I  presume 
the  jurors  themselves  are  desirous  of  participating 
in  the  proper  exercises  of  that  day,  whatever  they 
may  be  ;  and  although  I  feel  exceedingly  pressed 
for  time,  and  would  like  to  be  in  another  place, 
where  I  am  very  much  wanted :  considering  I 
have  no  right  from  the  importance  of  the  case,  to 
use  any  pressure  here  upon  the  parties,  or  coun- 
selors or  jurors,  (it  being  a  case  of  such  impor- 
tance); and  knowing  that  when  the  jurors  are 
once  committed  to  the  custody  of  the  officers, 
they  must  not  be  divided,  you  can  separate  for 
the  purpose  of  letting  the  jurors  have  their 
rights  to-morrow,  which  they  could  not  do  if  they 
were  compelled  to  keep  together.  If  the  case 
was  committed  to  them,  we  should  not  adjourn 
for  Thanksgiving  day,  and  I  have  a  little  doubt 
whether  we  should  for  Sunday,  if  we  judge  from 
ancient  precedents.  I  would  counsel  the  jury,  if 
you  hear  any  thing  concerning  the  law  or  facts 
in  this  case,  to  avoid  any  sort  of  disquisition, 
whether  it  comes  from  the  East,  South,  North, 
or  West.  Persons  might  perhaps  be  found  in 
every  direction  who  are  very  willing  to  instruct 
you  both  as  to  the  facts  and  law  of  this  case.  For- 
merly the  press  was  disposed  to  wait  until  the 
Court  had  decided  the  case,  and  then  they  passed 
upon  it  afterwards  ;  but  it  has  got  to  be  the  prin- 
ciple in  certain  parts  of  the  country  that  they 


UNITED  STATES  V.  HANWAY. 


45 


pass  upon  it  first.  I  hope  therefore  that  you 
will  not  pay  any  particular  attention  to  anything 
further  than  the  news  of  the  day. 

Judge  Kane.  I  take  the  liberty  of  adding  to 
the  gentlemen  of  the  jury  that  will  constitute  the 
panel,  that  arrangements  have  been  made  by  the 
Marshal  (in  conjunction  with  the  Court.)  with 
the  keeper  of  the  American  Hotel,  (directly  op- 
posite,) and  he  has  provided  rooms  for  their  ac- 
commodation. And  it  may  be  convenient  for  the 
jurors,  before  assembling  on  Friday  morning,  to 
remove  their  wardrobes  to  that  place,  where  they 
will  find  rooms  prepared  for  their  accommodation. 

Judge  Grier.  All  the  jurors  who  have  not 
been  sworn  on  the  present  case,  will  be  discharged 
until  Monday  week. 

The  Court  then  adjourned  to  meet  on  Friday, 
the  28th  day  of  November,  A.  D.,  1851,  at  10 
o'clock,  A.  M. 

[The  last  juror  was  not  sworn,  for  the  purpose 
of  avoiding  the  necessity  of  keeping  the  jury  to- 
gether, under  the  charge  of  the  Marshal,  until  the 
meeting  of  the  Court  on  Friday.] 

The  petit  jury  consists  of  the  following  gentle- 
men : 

1.  PvOBERT  ELLIOTT,  Farmer,  Ickesburg, 
Perry  county. 

2.  JAMES   WILSON,    Gentleman,  Fairfield 
Post-office,  Adams  county. 

8.  THOMAS  CONNELLY,  Carpenter,  Beaver  '  now  state  that  any  combination  or  conspiracy  by 
Meadow,  Carbon  county.  !  force  and  intimidation  to  prevent  the  execution 

4.  PETER  MARTIN,  Surveyor,  Ephrata  Post  ' 


W.  Ashmead,  then  opened  the  case  for  the  prose- 
cution, with  the  following  remarks  : 
May  it  please  the  Court, — Gentlemen  of  the  Jury — 

It  becomes  my  duty,  as  the  officer  charged  by  the 
law  with  the  prosecution  of  crimes  and  offences 
committed  against  the  laws  of  the  United  States 
within  the  Eastern  District  of  Pennsylvania,  to 
submit  for  your  consideration  the  indictment 
upon  which  the  prisoner  at  the  bar  has  been 
arraigned,  in  order  that  you  may  determine  upon 
the  question  of  his  guilt  or  innocence.  It  charges 
him  with  the  commission  of  a  crime  of  a  highly 
aggravated  character ;  in  its  nature,  the  most 
serious  that  can  be  perpetrated  against  a  human 
government.  It  is  technically  called  high  treason, 
and  is  defined  in  the  Constitution  of  the  United 
States  and  the  Act  of  Congress  of  30th  April,  1790. 
It  consists  in  this  country  only  in  levying  Avar 
against  the  United  States,  and  in  adhering  to 
their  enemies,  by  giving  to  them  aid  and  comfort. 
The  treason  charged  against  the  prisoner  at  the 
bar,  is  that  of  levying  war  against  the  United 
States,  and  I  desire  you  distinctly  to  understand 
that  it  is  not  a  case  of  constructive  treason,  but 
one  of  actual  treason,  and  embraced  within  the 
purview  of  the  Constitution  and  the  Act  of  Con- 
gress to  which  allusion  has  been  made.  What 
the  law  is  upon  this  subject  I  will  fully  explain 
!  before  I  conclude  my  opening  remarks ;  but  I 


office,  Lancaster  county. 

5.  ROBERT  SMITH,  Gentleman,  Gettysburg, 
Adams  county. 

6.  WILLIAM  R.  SADDLER,  Farmer,  York 
Sulphur  Springs,  Post-office,  Adams  county. 

7.  JAMES  M.  HOPKINS,  Farmer,  Bucks  Post- 
office,  Dumore  township,  Lancaster  county. 

8.  JOHN  JUNKIN,  Farmer,  Landisburg,  Perry 
county. 

9.  SOLOMON  NEWMAN,  Smith,  Milford,  Pike 
county. 

10.  JONATHAN  WAINWRIGHT,  Merchant, 
Philadelphia. 

11.  EPHRAIM  FENTON,  Farmer,  Upper  Dub 
lin  Post-office,  Montgomery  county. 

12.  JAMES  COWDEN,  Merchant,  Columbia, 
Lancaster  county. 


Friday,  November  28,  1851. 
The  Court  opened  at  10  o'clock,  A.  M. 
PRESENT,  JUDGES  GRIER  AND  KANE. 

Mr.  G.  L.  Ashmead.  Will  your  Honors  allow 
the  Crier  to  call  the  witnesses  for  the  U.  S.,  so 
that  I  may  be  able  to  send  for  those  who  are 
absent  ? 

Witnesses  called. 

Judge  Grier.  The  last  juror  called  was  not 
sworn. 

James  Cowden  is  called  and  answers. 


of  an  Act  of  Congress,  so  as  to  render  it  inopera- 
tive and  ineffective,  is  in  legal  estimation  high 
treason,  being  an  usurpation  of  the  authority  of 
government.  This  construction  of  the  Constitu- 
tion of  the  United  States  has  been  cotenipora- 
neous  with  the  adoption  of  that  instrument,  and 
every  judge,  whether  state  or  federal,  whose 
attention  has  been  directed  to  the  subject,  has 
agreed  in  this  interpretation.  It  was  so  held  in 
the  cases  of  the  Western  insurgents  in  1795,  in 
the  cases  of  the  Northampton  insurgents  in  1799, 
in  the  case  of  Aaron  Burr  in  1807,  by  Judge 
Story  in  his  charge  to  the  grand  jury  in  1842,  by 
Judge  King,  President  of  the  Court  of  Common 
Pleas  of  this  county,  in  his  charge  to  the  grand 
jury,  in  1846,  and  in  1851  by  his  Honor,  Judge 
Kane,  who  reviewed  the  whole  law  upon  this  sub- 
ject in  a  clear  and  conclusive  opinion,  which  has 
been  before  the  country  since  the  29th  of  Sep- 
tember last. 

The  treason  charged  against  the  defendant  is, 
that  he  wickedly  devised  and  intended  to  disturb 
the  peace  and  tranquillity  of  the  United  States,  by 
preventing  the  execution  of  the  laws  within  the 
same,  to  wit:  a  law  of  the  United  States,  entitled 
"An  Act  respecting  fugitives  from  justice,  and 
persons  escaping  from  the  service  of  their  masters, 
approved  February  12,  1793,"  and  also  a  law  of 
the  United  States,  entitled  "An  Act  to  amend, 
and  supplementrry  to  the  Act  entitled  'An  Act 
respecting  fugitives  from  justice,  and  persons  es- 
caping from  the  service  of  their  masters,  approved 
February  12,  1793,'  "  which  supplementary  Act 


The  juror  is  then  sworn,  and  takes  his  seat  in  was  approved  the  18th  of  September,  1850,  gene- 
the  box.  I  rally  known  as  the  Fugitive  Slave  Law.  The 

Jurors  empanelled  answer  to  their  names.  j  overt  acts,  which  may  be  considered  as  the  evi- 
The  United  States'  District  Attorney,  Mr.  John  j  dence  or  manifestation  of  the  manner  in  which 


46 


TREASON  CASES. 


the  treason  was  committed  are  set  forth  in  the 
indictment  as  follows  :  — 

First.— That  on  the  11th  of  September,  1851, 
in  the  County  of  Lancaster,  and  within  the  juris- 
diction of  this  Court,  the  defendant,  with  a  great 
number  of  persons,  armed  and  arrayed  in  a  war- 
like manner,  with  guns,  swords  and  other  wea- 
pons, assembled  and  traitorously  combined  to 
oppose  and  prevent  by  intimidation  and  violence, 
the  execution  of  the  laws  of  the  United  States 
already  adverted  to,  and  arrayed  himself  in  a 
warlike  manner  against  the  said  United  States. 

Second. — That  at  the  same  time  and  place,  the 
said  Castner  Hanway  assembled  with  others, 
with  the  avowed  intention  by  force  and  intimi- 
dation to  prevent  the  execution  of  the  said  laws 
to  which  I  have  alluded,  and  that  in  pursuance 
of  this  combination,  he  unlawfully  and  traitor- 
ously resisted  and  opposed  Henry  H.  Kline,  an 
officer  duly  appointed  by  Edward  D.  Ingraham, 
Esq.,  a  Commissioner  of  the  Circuit  Court  of  the 
United  States,  from  executing  lawful  process  to 
him  directed  against  certain  persons  charged 
before  the  Commissioner  with  being  persons  held 
to  service  or  labor  in  the  State  of  Maryland, 
owing  such  service  and  labor  to  a  certain  Edward 
Grorsuch,  under  the  laws  of  the  State  of  Maryland, 
who  had  escaped  into  the  Eastern  District  of 
Pennsylvania. 

Third. — That  in  further  execution  of  his  wicked 
design,  the  defendant  assembled  with  certain 
persons  who  were  armed  and  arrayed  with  the 
design,  by  means  of  intimidation  and  violence,  to 
prevent  the  execution  of  the  laws  already  alluded 
to,  and  being  so  assembled,  knowingly  and  wil- 
fully assaulted  Henry  H.  Kline,  the  officer  ap- 
pointed by  the  Commissioner  to  execute  his 
process,  and  then  and  there,  against  the  will  of 
the  said  Henry  H.  Kline,  liberated  and  took  out 
of  his  custody  persons  before  that  time  arrested 
by  him. 

Fourth :  That  the  defendant  in  pursuance  of  his 
traitorous  combination  and  conspiracy  to  oppose 
and  prevent  the  said  laws  of  the  United  States 
from  being  carried  into  execution,  conspired  and 
agreed  with  others  to  oppose  and  prevent  by 
force  and  intimidation,  the  execution  of  the  said 
laws,  and  in  the  ways  already  described,  did  vio- 
lently resist  and  oppose  them 

Fifth  :  That  the  defendant  in  pursuance  of  his 
combination  to  oppose  and  resist  the  said  laws  of 
the  United  States,  prepared  and  composed  divers 
books  and  pamphlets,  and  maliciously  and  trai- 
torously distributed  them,  which  books  and  pam- 
phlets contained  incitements  and  encouragements 
to  induce  and  persuade  persons  held  to  service 
in  any  of  the  United  States  by  the  laws  thereof, 
who  had  escaped  into  this  district,  as  well  as 
other  persons,  citizens  of  this  district,  to  resist 
and  oppose  by  violence  and  intimidation  the  ex- 
ecution of  the  said  laws,  and  also  containing  in- 
structions how,  and  upon  what  occasions  the 
traitorous  purposes  should  and  ought  to  be  car- 
ried into  effect. 

The  overt  acts  which  I  have  now  described 
embrace  all  the  charges  which  the  government 
presents  against  this  defendant.  I  need  not  say 
to  you  that  they  are  altogether  of  an  extraordi- 


nary character,  and  such  as,  in  this  country,  are 
but  seldom  presented  for  the  consideration  of  a 
court  and  jury.  In  monarchical  governments, 
it  is  true,  crimes  of  this  description  are  of  frequent 
occurrence,  but  in  a  government  like  ours  they 
are  but  seldom  committed.  The  tyranny  to  which 
the  subjects  of  despotisms  are  exposed,  may  so 
burden  and  oppress  them  that  longer  submission 
becomes  intolerable,  and  they  are  driven  to  efforts 
to  shake  it  off.  The  failure  to  succeed  involves 
them  in  the  guilt  of  treason,  and  trial  and  con- 
viction for  the  offence  follow  as  a  consequence. 
In  governments  so  constituted,  the  only  hope  for 
a  change  exists  in  revolution,  and  hence  the  at- 
tempt made  is  to  overturn  the  whole  fabric  of 
government.  Under  such  circumstances,  treason 
may  become  patriotism,  and  the  friends  of  liberty 
throughout  the  world  may  ardently  wish  for  its 
success.  No  such  excuse,  however,  exists  with 
us;  for  our  institutions  are  based  upon  the  inhe- 
rent right  of  the  people  to  change  and  modify 
their  form  of  government.  In  the  constitution 
of  the  United  States,  as  well  as  in  those  of  the 
several  States,  modes  are  provided  by  which 
their  provisions  can  be  altered.  If  obnoxious 
acts  of  Congress  are  passed  they  can  be  changed 
or  repealed.  Hence  this  defendant,  if  he  has 
perpetrated  the  offence  charged  in  the  indict- 
ment, has  raised  his  hand  without  excuse  or 
palliation  against  the  freest  government  on  the 
face  of  the  earth.  He  has  not  only  set  its  laws 
i  at  defiance,  by  seeking  to  overturn  them,  and  to 
'  render  them  inoperative  and  void ;  but  the  con- 
spiracy into  which  he  entered,  assumed  a  deeper 
and  more  malignant  dye,  from  the  wanton  man- 
ner, in  which  it  was  actually  consummated.  I 
allude  to  the  murder  in  which  it  resulted.  An 
honorable  and  worthy  citizen  of  a  neighboring 
State,  who  entered  our  Commonwealth,  under  the 
protection  of  the  constitution  and  laws  of  the 
Union,  for  the  purpose  of  claiming  his  property 
under  due  process  of  law,  was  mercilessly  beaten 
and  murdered,  in  consequence  of  the  acts  of  the 
defendant  and  his  associates.  It  is.  a  disgrace 
upon  our  national  escutcheon  ;  a  blot  upon  the 
fair  fame  of  Pennsylvania ;  and  a  reproach  which 
nothing  short  of  the  conviction  and  punishment 
of  the  offenders  can  ever  wipe  out.  It  is  for  you, 
gentlemen  of  the  jury,  to  judge  of  the  evidence 
which  the  government  will  submit  in  this  case; 
and  I  need  not  say  to  you,  that  if  it  proves  the 
defendant  to  have  been  one  of  the  actors  in  the 
bloody  tragedy  of  Christiana,  that  you  will  find 
him  guilty  of  the  offence. 

I  desire,  however,  in  the  course  of  my  remarks 
to  say  nothing  which  may  be  calculated  in  any 
way  unnecessarily  to  inflame  your  minds  against 
the  defendant.  I  trust  he  may  be  able  to  con- 
vince you  that  he  had  no  participation  in  the 
dreadful  transactions  of  the  11th  of  September, 
and  thus  rescue  his  name  from  the  obloquy 
and  infamy  which  would  otherwise  attach  to  it. 
He  has  a  right  to  demand  a  fair  and  impartial 
hearing  at  your  hands,  and  a  candid  and  dis- 
passionate consideration  of  the  testimony  which 
he  may  produce.  Nay,  he  is  entitled  to  even 
more  than  this ;  for  every  reasonable  doubt 
which  may  arise  in  the  cause  is  to  be  resolved 


UNITED  STATES  V,  HANWAY. 


47 


in  his  favor.  He  is  not  to  be  required  to  estab- 
lish bis  innocence,  but  it  is  for  the  prosecution 
to  make  out  and  prove  bis  guilt.  The  Govern- 
ment of  the  United  States  does  not  ask  any  man's 
conviction  on  testimony  which  is  uncertain  in 
its  nature,  and  not  adequate  to  establish  the 
facts  for  Avhich  it  is  adduced.  On  the  other 
hand,  we  have  a  right  to  expect  from  you  a  fair 
and  impartial  discharge  of  public  duty.  A  heavy 
responsibility  rests  upon  you,  and  there  is  no 
way  of  evading  its  requirements.  If  it  can  be 
shown  by  competent  and  credible  testimony  that 
the  defendant  is  guilty  of  the  offence  which  is 
charged  in  the  indictment,  it  is  essential  to  the 
peace  of  the  country  that  you  should  say  so  by 
your  verdict.  Justice  requires  it.  and  the  obli- 
gation of  your  oaths  demand  it. 

I  need  hardly  say  to  you,  that  the  outrage 
perpetrated  at  Christiana  was,  in  my  judgment, 
treason  against  the  United  States  ;  and  all  who 
participated  in  it  are  guilty  of  that  oflence.  It 
was  a  concerted  and  combined  resistance,  by 
force,  of  a  statute  of  the  United  States,  and  was 
made  with  the  declared  intent,  so  far  as  the  de- 
fendant Hanway  was  concerned,  to  render  its 
provisions  void,  and  to  make  the  act  altogether 
inoperative.  The  proof  against  him  will  be  clear 
and  convincing,  and  such  as  to  satisfy  eveiy  one 
of  his  guilt.  The  overt  acts  will  be  established 
by  the  testimony  of  more  than  two  witnesses, 
in  so  pointed  and  distinct  a  manner  that  no 
question  of  their  truth  can  exist. 

In  order  that  you  may  fully  understand  the 
character  of  the  evidence  which  we  propose  to 
introduce,  I  will  give  .you  a  brief  narrative  of  the 
facts  as  they  will  be  detailed  by  the  witnesses. 

On  the  9th  of  September  last,  Edward  D.  In- 
graham,  Esq.,  Commissioner  of  the  United  States, 
issued  four  warrants,  directed  to  Henry  H.  Kline, 
an  officer  appointed  by  him  under  the  authority 
of  the  Act  of  13th  September,  1850,  commanding 
him  to  apprehend  Noah  Buley,  Nelson  Ford, 
Joshua  Hammond  and  George  Hammond,  who 
had  been  legally  charged  before  the  said  Com- 
missioner with  being  fugitives  from  labor,  who 
had  escaped  from  the  State  of  Maryland  into  the 
State  of  Pennsylvania,  and  owed  such  service 
and  labor  to  a  certain  Edward  Gorsuch.  The 
fact  that  the  writs  had  been  issued,  became 
known  to  a  colored  man  living  in  this  city,  named 
Samuel  Williams,  who  preceded  the  officers  to 
the  neighborhood  where  the  slaves  resided,  and 
where  the  arrests  were  to  have  been  made,  and 
gave  notice  that  they  were  coming  to  execute 
them.  On  the  llth  of  September,  Kline  and  his 
party,  consisting  of  Edward  Gorsuch,  Dickerson 
Gorsuch,  Joshua  M.  Gorsuch,  Dr.  Thomas  Pierce, 
Nicholas  Hutchings  and  Nathan  Nelson,  pro- 
ceeded to  Christiana,  Lancaster  County,  and  on 
arriving  there,  started  for  Parker's  house,  a 
place  about  three  miles  distant  from  the  railroad  j 
depot  on  the  Columbia  road,  which  they  reached  ' 
about  daylight  in  the  morning.  While  proceed- 
ing along  the  road,  and  across  the  fields,  their  | 
attention  was  arrested  by  the  sound  of  horns,  I 
and  the  blowing  of  a  bugle.  After  watching  I 
about  Parker's  house  for  a  short  time,  one  or  ' 
two  negroes  were  seen  coming  out  of  it.    On  i 


discovering  Kline  and  bis  party  they  fled  back 
into  the  house,  and  on  pursuit  being  made  by 
him,  they  ran  up  stairs.  These  negroes  were 
recognized  by  Edward  Gorsuch,  and  .  known  to 
be  his  slaves.  Kline  entered  the  house,  and 
almost  immediately  ascertained  that  a  large 
number  of  negroes  were  concealed  in  the  upper 
part  of  it;  he  nevertheless  went  to  the  stairway 
and  called  the  keeper  of  the  house  to  come  down, 
stating  that  he  was  desirous  of  speaking  to  him. 
The  negroes  at  this  time  were  heard  loading 
their  guns.  Kline  hearing  the  noise,  said  to 
them  that  there  was  no  occasion  for  arming 
themselves, — that  he  designed  to  harm  no  one, 
but  meant  to  arrest  two  men  who  were  in  the 
house,  and  for  whom  he  had  warrants.  Some 
one  replied  they  would  not  come  down.  Edward 
Gorsuch  then  went  himself  to  the  stairway, 
called  his  slaves  by  name,  and  stated  that  if 
they  would  come  down  and  return  home  he 
would  treat  them  kindly  and  forgive  the  past. 
Kline  then  read  the  warrants  three  times,  and 
afterwards  attempted  to  go  up  stairs,  when  a  sharp 
pointed  instrument  was  thrust  at  him,  and  an  axe 
afterwards  thrown  down  which  struck  two  of  the 
party  below.  Edward  Gorsuch  then  went  to  the 
front  door  of  the  house,  and  looking  up  to  the 
window,  again  called  to  his  slaves  by  name,  when 
a  shot  was  fired  at  him  from  the  window.  In 
order  to  intimidate  the  blacks,  Kline  fired  his  pis- 
tol. At  this  period  a  horn  was  blown  in  the  house 
which  was  answered  by  other  horns  from  the  out- 
side, as  if  by  pre-concerted  action.  The  negroes 
then  asked  fifteen  minutes  time  for  consideration, 
which  was  granted  to  them.  At  this  moment  a 
white  man  was  seen  approaching  the  house  on 
horseback.  It  turned  out  to  be  Castner  Hanway, 
the  present  defendant.  Kline  immediatly  walked 
towards  him  and  inquired  if  he  resided  in  the 
neighborhood.  His  answer  was  short  and  rude  : 
"It  is  none  of  your  business."  Kline  replied  by 
letting  him  know  he  was  a  Deputy  Marshal  of  the 
United  States,  gave  him  the  warrants  to  read, 
and  called  upon  him  in  the  name  of  the  United 
States  to  assist  in  making  the  arrests.  Hanway 
replied  "he  would  not  assist — that  he  did  not 
care  for  that  act  of  Congress  or  any  other  act, — 
that  the  negroes  had  rights  and  could  defend 
themselves,  and  that  he  need  not  come  there  to 
make  arrests,  for  he  could  not  do  it."'  By  this 
time  another  white  man  had  arrived  on  the  ground, 
(Elijah  Lewis,)  who  walked  up  to  Kline,  and  asked 
him  for  his  authority  to  be  there.  Kline  showed 
his  papers  to  him  also.  Lewis  then  read  the 
warrants,  passed  them  to  Hanway,  who  returned 
them  to  the  Marshal.  Lewis,  after  reading  the 
warrants,  said  "  the  negroes  had  aright  to  defend 
themselves."  Kline  then  called  upon  him  to  as- 
sist him  in  making  the  arrests,  when  he  refused, 
and  would  not  even  tell  his  name.  Kline  then 
asked  Hanway  wdiere  his  residence  was  ;  he  re- 
plied "you  must  find  that  out  the  best  way  you 
can."  Kline  then  explained  to  them  what  his  views 
of  the  act  of  Congress  of  1850  were,  and  informed 
that  through  their  agency  these  slaves  would 
escape.  By  this  time  the  blacks  had  gathered  in 
very  large  numbers  around  the  house,  armed  with 
guns,  which  they  commenced  pointing  towards 


48 


TREASON  CASES. 


the  Marshal.  At  this  juncture,  Kline  implored  ' 
Hanway  and  Lewis  to  keep  the  negroes  from 
firing,  and  he  would  withdraw  his  men,  leave  the 
ground,  and  let  the  negroes  go.  Hanway  in- 
stantly replied,  "  they  had  a  right  to  defend 
themselves,  and  he  would  not  interfere."  Kline's 
answer  was,  "  they  were  not  good  citizens,  or 
they  never  would  permit  the  laws  to  be  set  at 
defiance  in  this  way."  Dr.  Pearce  then  re- 
marked "that  all  they  wanted  was  their  pro- 
perty, and  that  they  did  not  wish  to  hurt  a  hair 
of  anyone's  head"  Lewis  replied  "that  ne- 
groes were  not  property,"  and  then  walked  away. 
By  this  time  another  gang  of  negroes  had  arrived, 
armed  with  guns  and  clubs,  and  Hanway  rode 
up  to  them  and  said  something  in  a  low  tone  of 
voice.  He  moved  his  horse  out  of  the  way  of 
the  guns  ;  the  negroes  shouted,  and  immediately 
fired  from  every  direction.  Hanway  rode  a  short 
distance  down  the  lane  leading  from  Parker's 
house,  and  sat  on  his  horse  watching  the  blacks. 
Kline  then  called  to  Lewis,  telling  him  a  man 
was  shot,  and  begging  him  to  come  and  assist, 
which  Lewis  refused  to  do.  This  conversation 
took  place  at  the  bars  on  the  short  lane,  which 
will  be  shown  to  you  upon  the  plan  we  purpose 
giving  in  evidence.  While  this  conversation 
was  going  on,  and  just  before  the  firing  com- 
menced, Edward  Gorsuch  was  standing  in  the 
short  lane,  about  half  way  between  the  bars  and 
the  house.  Joshua  M.  Gorsuch  was  standing 
near  him ;  Dickinson  Gorsuch  was  in  the  short 
lane,  not  so  near  his  father  as  was  Joshua, 
and  Dr.  Pearce;  Mr.  Hutchings  and  Mr.  Nelson 
wore  somewhere  near  the  same  spot.  The  num- 
ber of  negroes  assembled  at  this  time  must  have 
exceeded  one  hundred.  Before  the  firing  com- 
menced, Edward  Gorsuch  was  struck  with  a  club 
on  the  back  part  of  the  head,  and  fell  forward 
on  his  hands  and  knees.  As  he  was  struggling 
to  rise,  and  in  the  act  of  getting  upon  his  feet, 
he  was  shot  down,  and  when  prostrate  on  the 
ground,  was  cut  on  the  head  with  a  corn  cutter, 
and  beaten  with  clubs.  Dickinson  Gorsuch,  on 
perceiving  the  attack  made  upon  his  father,  im- 
mediately rushed  to  his  assistance,  when  his 
revolver  was  knocked  out  of  his  hand,  and  he 
himself  shot  in  various  parts  of  the  body,  pro- 
ducing intense  agony,  and  rendering  him  utterly 
helpless.  Joshua  M.  Gorsuch  was  attacked  at 
the  same  time,  and  defended  himself  with  his 
revolver,  which  he  twice  snapped  at  his  assail- 
ants, but  the  powder  being  wet  it  would  not  go 
off.  He  was  also  struck  down  and  cruelly  beaten 
and  maltreated.  When  the  firing  commenced, 
Kline,  in  order  to  avoid  its  effects,  escaped  into 
a  corn  field,  but  on  seeing  Dickinson  Gorsuch 
struggling  in  the  short  lane  apparently  wounded 
and  bleeding,  at  the  risk  of  his  own  life  he  went 
to  his  assistance,  and  placed  him  under  the 
shelter  of  a  tree  until  aid  could  be  procured. 
Hutchings  and  Nelson,  two  of  the  others,  were 
at  this  time  making  their  escape,  the  negroes 
being  in  full  pursuit,  Dr.  Pearce  and  Joshua 
Gorsuch  retreated  by  the  short  lane,  and  a  num- 
ber of  shots  were  fired  at  them  as  they  moved 
off.  Dr.  Pearce  was  shot  in  the  wrist,  side  and 
shoulder,  and  a  ball  also  passed  through  his  hat 


'  just  above  his  forehead.  In  the  effort  to  escape, 
these  latter  gentlemen  rushed  towards  Hanway, 
who  was  still  sitting  on  his  horse  in  the  long 
lane.  They  besought  him  to  prevent  the  negroes 
from  pursuing  farther.  He  said  he  could  not. 
They  then  asked  for  permission  to  get  upon  his 
horse,  which  would  afford  the  means  of  making 
their  escape.  He  refused  their  request,  and 
putting  whip  to  his  horse  rode  off  at  full  speed. 
This  mode  of  a  safe  retreat  being  denied  to  Dr. 
Pearce  and  Joshua  Gorsuch,  their  only  hope  was 
in  continuing  to  run.  Pearce  was  in  front,  and 
Joshua  Gorsuch  behind.  In  looking  back,  Dr. 
Pearce  saw  a  negro  who  had  previously  fired  at 
him,  strike  Joshua  Gorsuch  with  a  gun,  which 
felled  him  to  the  earth,  and  only  escaped  himself 
by  rushing  into  a  neighboring  farm-house,  where 
he  was  concealed  from  view.  Joshua  M.  Gorsuch 
and  Dickinson  Gorsuch  were  subsequently  carried 
to  houses  in  the  vicinity,  and  were  a  long  time 
recovering  from  their  wounds.  In  connection 
with  this  narrative  of  facts,  I  will  also  state  that 
there  are  two  or  three  other  matters  which  will 
appear  in  the  course  of  the  testimony  to  which 
I  shall  call  your  attention. 

First — That  so  soon  as  Hanway  appeared  at 
the  bars,  the  negroes  in  Parker's  house  appeared 
evidently  to  be  encouraged,  and  gave  a  shout  of 
satisfaction ;  when  before  that  they  had  appeared 
discouraged,  and  had  asked  for  time. 

Second — That  before  the  firing  commenced, 
Kline  had  given  orders  to  his  party  to  retreat, 
and  they  were  actually  engaged  in  the  retreat 
when  the  attack  was  made. 

Third — That  Edward  Gorsuch,  who  was  killed, 
had  no  weapon  of  any  kind  in  his  hands,  and  was 
therefore  cruelly,  wantonly  and  unnecessarily 
wounded  by  the  defendant  and  his  associates, 
while  carrying  out  their  combination  and  conspi- 
racy to  resist,  oppose  and  render  inoperative  and 
void  the  acts  of  Congress  referred  to  in  the  in- 
dictment. 

Such,  Gentlemen  of  the  Jury,  is  the  general 
outline  of  the  facts,  which  I  propose  laying 
before  you,  in  order  to  sustain  the  accusations 
contained  in  the  indictment.  The  details  of  the 
testimony,  as  you  will  receive  it  from  the  wit- 
nesses, will  fully  complete  this  sketch.  If  the 
result  of  the  investigation  exhibits  the  state  of 
facts  which  I  anticipate,  it  will  be  contended  on 
behalf  of  the  United  States,  that  the  crime  of 
High  Treason  has  been  established  against  the 
defendant ;  and  that  you,  faithfully,  honestly,  and 
fearlessly  responding  to  the  obligations  of  your 
oaths,  will  say  so  by  your  verdict, 

Treason  against  the  United  States,  as  defined 
by  the  Third  Section  of  the  Third  Article  of  the 
National  Constitution,  consists  in  levying  war 
against  them,  or  in  adhering  to  their  enemies, 
giving  them  aid  and  comfort.  The  crime  charged 
against  this  defendant,  is  that  embraced  under 
the  first  of  these  subdivisions,  viz. :  that  of  levy- 
ing xoar  against  the  United  States.  The  phrase, 
levying  war,  was  long  before  the  adoption  of  the 
Constitution,  a  phrase  of  well-known  legal  sig- 
nification, embracing  such  a  forcible  resistance 
to  the  laws,  as  that  charged  against  this  defend- 
ant.   Since  the  adoption  of  the  Constitution,  it 


UNITED  STATES  V.  GORSUCH. 


49 


has  received  a  similar  construction  from  the  j 
Federal  Judiciary,  and  may  now  be  considered 
as  a  settled  principle  of  the  criminal  code  of  { 
the  United  States.  The  judicial  decisions  upon 
which  this  position  is  predicated,  will  be  sub- 
mitted to  the  Court  and  yourselves,  in  the  course 
of  this  address,  in  that  which  I  regard  as  its  ap- 
propriate place. 

The  Act  of  Congress,  which  the  defendant  is 
charged  to  have  forcibly,  violently,  and  treason- 
ably resisted,  is  an  Act,  approved  on  the  18th  of 
September,  1850,  entitled  :  "  An  Act  to-  amend, 
and  supplementary  to  the  Act  entitled  :  '  An 
Act  respecting  fugitives  from  justice,  and  per- 
sons escaping  from  the  service  of  their  masters, 
approved  February  12th,  1793.'  "  The  original 
Act  of  1793,  and  the  supplement  of  1850,  are 
based  on  the  provision  of  the  Second  Section  of 
the  4th  Article  of  the  Constitution  of  the  United 
States,  and  are  intended  to  carry  into  full  and 
faithful  execution,  the  clear,  positive,  and  un- 
equivocal injunctions  of  that  instrument.  The 
Section  which  I  allude  to,  declare?  that  "  No 
person  held  to  service  or  labor  in  one  State, 
under  the  laws  thereof,  escaping  into  another, 
shall  in  consequence  of  any  law  or  regulation 
therein,  be  discharged  from  such  service  or  la- 
bor, but  shall  be  delivered  up,  on  claim  of  the 
party,  to  whom  such  service  or  labor  may  be 
due."  It  is  almost  needless  to  say.  that  without 
this  provision,  the  Constitution  of  the  United 
States  never  could  have  been  adopted  ;  the  ex- 
isting  National  Union  never  could  have  been  j 
formed,  and  the  powerful,  prosperous,  and 
glorious  Republic  of  the  United  States,  never 
could  have  existed  among  the  nations  of  the 
earth.  Of  the  value  of  this  Union,  not  only  to 
us  as  a  separate  people,  but  to  the  common 
family  of  mankind,  I  admit  my  utter  inad- 
equacy to  form  an  estimate,  regarding  it  as  one 
of  those  great  blessings  of  Divine  Providence, 
which  human  intellect  cannot  fathom  ;  and  which 
increases  in  appreciation  with  the  progressive 
development  of  its  benefits. 

The  Constitution  of  the  United  States  you  are 
aware,  was  adopted  by  a  convention  of  the  peo- 
ple of  the  States,  on  the  17th  of  September,. 1787. 
At  the  second  session  of  the  Second  Congress, 
held  under  that  Instrument,  viz.  :  on  the  12th 
day  of  February,  1793,  was  passed,  the  "Act 
respecting  fugitives  from  justice,  and  persons 
escaping  from  the  service  of  their  masters."  Its 
provisions  were  plain,  simple,  and  clear  ;  mani- 
festing on  the  part  of  its  framers  ;  many  of  whom 
had  been  members  of  the  National  Convention, 
which  had  previously  framed  the  Constitution, 
a  frank,  honest,  and  sincere  disposition  to  carry 
into  effect,  a  constitutional  injunction,  which 
most  probably,  was  unpalatable  to  some  of  them. 
The  law  is  sufficiently  brief  to  justify  my  reading 
a  portion  of  it.  The  third  and  fourth  sections  of 
it  are  as  follows  :  — 

Sec.  3.  That  when  a  person  held  to  labor  in 
any  of  the  United  States,  or  in  either  of  the  ter- 
ritories on  the  North  West  or  South  of  the  river 
Ohio,  under  the  laws  thereof,  shall  escape  into  any 
other  of  the  said  States  or  territory,  the  person  to 
whom  such  labor  or  service  may  be  due,  his  agent 


or  attorney,  is  hereby  empowered  to  seize  or  ar- 
rest such  fugitive  from  labor,  and  to  take  him  or 
her  before  any  Judge  of  the  Circuit  or  District 
Courts  of  the  United  States,  residing  or  being 
within  the  State,  or  before  any  magistrate  of  a 
county,  city,  or  town  corporate,  wherein  such  sei- 
zure or  arrest  shall  be  made,  and  upon  proof,  to 
the  satisfaction  of  such  Judge  or  Magistrate, 
either  by  oral  testimony  or  affidavit  taken  before 
and  certified  by  a  magistrate  of  any  such  State 
or  territory,  that  the  person  so  seized  or  ar- 
rested, doth,  under  the  laws  of  the  State  or  ter- 
ritory from  which  he  or  she  fled,  owe  service  or 
labor  to  the  person  claiming  him  or  her,  it  shall 
be  the  duty  of  such  Judge  or  Magistrate  to  give 
a  certificate  therof  to  such  claimant,  his  agent  or 
attorney,  which  shall  be  sufficient  warrant  for 
removing  the  said  fugitive  from  labor,  to  the 
State  or  territory  from  which  he  or  she  fled. 

Sec,  4.  That  any  person  who  shall,  knowingly 
and  willingly,  obstruct  or  hinder  such  claimant, 
his  agent  or  attorney,  in  so  seizing,  or  arresting 
such  fugitive  from  labor,  or  shall  rescue  such 
fugitive  from  such  claimant,  his  agent,  or  attor- 
ney when  so  arrested  pursuant  to  the  authority 
herein  given  or  declared  ;  or  shall  harbor  or  con- 
ceal such  person  after  notice,  that  he  or  she  was 
a  fugitive  from  labor,  as  aforesaid,  shall,  for 
either  of  the  said  offences,  forfeit  and  pay  the 
sum  of  Five  Hundred  Dollars,  which  penalty  may 
be  recovered  by  and  for  the  benefit  of  such  claim- 
ant, by  action  of  debt,  in  any  court  proper  to  try 
the  same  ;  saving,  moreover,  to  the  person  claim- 
ing such  labor  or  service,  his  right  of  action  for, 
or  on  account  of  the  said  injuries,  or  either  of 
them. 

For  a  series  of  years  after  its  passage,  this 
law  was  quietly  executed,  according  to  its  spirit 
i  and  letter :  neither  State  Legislatures,  nor  State 
Judiciaries  throwing  any  obstructions  in  its  way. 
On  the  exciting  topic  of  domestic  slavery,  peace 
reigned  within  our  borders.    In  such  of  the 
States,  as  deemed  this  institution  incompatible 
I  with  their  interest,  or  where  it  was  repugnant  to 
!  the  popular  feeling,  it  was  abolished  cautiously, 
I  prudently,  and  progressively.    But  everywhere, 
j  the  solemn  obligations  of  the  Constitution,  to 
surrender  the  absconding  slave  to  his  rightful 
claimant  was  admitted,  respected,  and  complied 
with.    Men  had  not  then  become  wiser  than  the 
laws,  nor  had  they  learned  to  measure  the  plain 
and  unambiguous  letter  of  the  Constitution,  by 
an  artificial  standard  of  their  own  creation  ;  and 
to  obey  or  disregard  it  according  as  it  came  up 
I  to,  or  fell  beneath  it.    A  change,  however,  came 
o'er  the  spirit  of  a  portion  of  the  people  of 
!  some  of  the  States.    This  change  of  sentiment 
!  soon  manifested  itself  in  the  enactments  of  State 
Legislatures,  and  in  the  decisions  of  State  Judi- 
!  claries  consequent  upon  them,  which  created 
I  such  embarrassments  and  difficulties  in  the  exe- 
!  cution  of  the  Act  of  1793,  as  to  render  it,  prac- 
;  tically  speaking,  a  dead  letter  in  some  of  the 
:  States.    I  do  not  propose  to  enter  into  any 
detailed  history  of  this  legislation,  or  of  these 
adjudications.    That  would  be  alike  fatiguing  to 
:  you,  and  of  little  value  in  the  consideration  of 
L  the  matter  in  hand.     I  will,  however,  refer 


TREASON  CASES. 


to  the  legislation  of  our  own  Commonwealth, 
which  though  generally  characterized  by  fideli- 
ty to  the  National  compact,  still  shows  that 
this  new  influence,  to  a  certain  extent,  had  even 
affected  her  usually  steadfast  and  solid  character. 
On  the  26th  of  March,  1826,  the  Legislature  of 
Pennsylvania,  passed  an  Act,  entitled,  "An  Act 
to  give  effect  to  the  provisions  of  the  Constitu- 
tion of  the  United  States,  relative  to  fugitives 
from  labor,  for  the  protection  of  free  people  of 
color,  and  to  prevent  kidnapping,' 

This  Statute  purporting  to  be  intended  to  give 
effect  to  the  provisions  of  the  Constitution,  rela- 
tive to  fugitives  from  labor,  deprived  all  the 
Aldermen  and  Justices  of  the  peace  of  power  to 
hear  and  decide  upon  the  cases  of  such  fugitives, 
confining  their  authority  to  the  issuing  of  war- 
rants for  the  arrest  of  such  fugitives,  which 
warrants  were  however,  to  be  made  returnable 
before,  and  the  complaint  to  be  heard  by  a  Judge 
of  the  proper  county.  The  Ninth  Section  of  the 
Act  declaring  that  no  Alderman  or  Justice  of  the 
Peace  should  take  cognizance  of  the  case  of  any 
fugitive  from  labor  from  any  of  the  United 
States,  under  the  Act  of  1793,  and  forbidding 
them  to  grant  any  certificate  or  warrant  of  re- 
moval of  such  fugitive  upon  the  application,  affi- 
davit or  testimony  of  any  person  or  persons 
whatsoever,  under  the  said  Act  of  Congress,  or 
any  other  law,  authority  or  Act  of  the  Congress 
of  the  United  States,  under  penalty  of  being 
guilty  of  a  misdemeanor  in  office,  and  of  incur- 
ring a  fine  of  not  less  than  Five  Hundred,  nor 
exceeding  One  Thousand  Dollars.  This  Act, 
however,  authorized  the  Judge,  before  whom  an 
alleged  fugitive  was  brought,  to  take  bail  for  his 
appearance  until  final  hearing,  or  in  default 
thereof  to  commit  him  to  the  common  jail  of 
the  County  for  safe  keeping,  at  the  expense  of 
the  owner. 

This  law  was  followed  by  the  Act  of  the  3d  of 
March,  1847,  the  third  section  of  which  abso- 
lutely forbids  any  judge  of  the  Commonwealth 
from  taking  cognizance  of  the  case  of  any  fugitive 
from  labor  from  any  of  the  United  States,  under 
the  Act  of  1793.  The  sixth  section  even  declares 
that  "it  shall  not  be  lawful  to  use  any  jail  or 
prison  of  the  Commonwealth  for  the  detention  of 
any  person  claimed  as  a  fugitive  from  servitude," 
and  subjects  any  jailor  or  prison-keeper  offend- 
ing against  its  provisions,  to  a  heavy  pecuniary 
fine,  and  to  a  disqualification  for  life  from  holding 
such  office  or  trust. 

The  effect  of  the  first  of  these  Acts  was  to 
render  futile  so  much  of  the  Act  of  Congress  of 
the  12th  of  February,  1793,  as  imparted  jurisdic- 
tion in  the  cases  of  fugitives  from  labor  to  State 
aldermen  and  justices  of  the  peace,  thus  depriving 
the  claimant  of  a  convenient  and  accessible  tri- 
bunal, before  which  he  could  bring  his  arrested 
fugitive  servant ;  and  referring  him  to  the  county 
judges.  These  officers,  in  many  instances,  were 
only  to  be  found  at  remote  distances  from  the 
place  of  arrest,  and  during  a  large  portion  of 
their  time  were  actually  engaged  in  other  public 
business  which  necessarily  hindered  them  from 
giving  the  prompt  attention  to  such  cases,  which 
their  nature  demanded.    The  necessity  of  carry- 


ing an  arrested  fugitive  for  long  distances, 
through  populations  sometimes  strongly  preju- 
diced against  the  institution  of  slavey,  rendered 
arrests  hazardous,  sometimes,  indeed,  subjecting 
claimants  to  personal  dangers,  which  prudent 
men  were  not  willing  to  encounter,  even  in  the 
pursuit  of  their  rights.  But  still  the  Act  of  1825 
left  a  local  State  tribunal  in  every  county, 
though  an  inconvenient  one,  to  which  a  claimant 
under  the  Act  of  1793  could  apply.  But  the  Act 
of  1847,  took  that  away  from  him  by  forbidding 
the  State  judiciary  to  take  cognizance  of  the  case 
of  a  fugitive  from  labor  under  the  Act  of  1793. 
And  the  use  of  the  county  prison  was  refused  for 
the  detention  of  any  person  claimed  as  such  a 
fugitive. 

What  was  the  actual  state  of  things  produced 
by  the  operation  of  these  laws?  None  but  a 
judge  of  the  United  States  could  aid  the  claimant 
of  a  fugitive  from  labor,  and  that  judge  could  not 
commit  such  fugitive  to  any  county  prison  for 
safe  keeping,  pending  an  investigation  before 
him.  At  that  time  the  United  States  had  three 
judges  in  this  State,  having  jurisdiction  in  cases 
of  fugitives  from  labor.  The  Judge  of  the  Eastern 
District,  residing  in  Philadelphia ;  the  judge  of 
the  Western  District,  residing  at  Pittsburgh,  and 
the  Circuit  Judge,  whose  time  was  divided  by 
the  Circuit  Courts  held  in  Philadelphia,  Trenton, 
(New  Jersey,)  Williamsport  and  Pittsburgh. 

And  these  Judges,  located  at  such  remote 
points,  had  no  means  given  them  to  secure  a 
person  charged  as  a  fugitive  from  labor,  even 
in  the  rare  instances  in  which  they  could  be 
brought  before  them. 

In  this  state  of  things,  the  arrest  of  a  fugitive 
from  labor  in  Pennsylvania,  became,  practically 
speaking,  an  impossibility.  Or,  certainly,  in 
nine  cases  out  of  ten,  the  promises  of  the  Con- 
stitution and  the  laws  to  the  claimant  of  a  fugi- 
tive from  labor,  became  the  merest  delusion. 

In  other  States  of  the  Union,  laws  of  an  equally 
urgent  and  embarrassing  character  prevailed ; 
until  the  provision  of  the  Constitution  respecting 
fugitives  from  labour,  and  the  laws  passed  to 
carry  it  into  execution  had  almost  reached  the 
point  of  absolute  nullity.  And  this  great  nation 
I  found  itself  in  the  position  of  those  weak  and 
|  feeble  governments  in  which  there  exist 

"  laws  for  all  faults  ;  . 
But  faults  so  count'nanc'd,  that  the  strong  statutes 
Stand  like  the  forfeits  in  a  barber's  shop, 
As  much  in  mock  as  mart." 

Under  such  a  state  of  things  what  was  justly 
to  be  expected  from  those  States  which  had  en- 
tered into  the  National  Compact,  under  the 
solemn  guarantees  and  pledges  of  the  Constitu- 
tion? Deep  feelings,  intense  excitements  arising 
from  wounded  sensibility,  mortified  pride,  and 
great  personal  interests  believed  to  be  placed  in 
jeopardy.  Of  this  state  of  public  feeling,  in 
some  instances  it  is  to  be  feared  bad  and  design- 
ing men  sought  to  take  the  advantage,  until  in 
the  fierceness  of  the  conflict  that  arose,  our  noble 
Union  seemed  to  rock  on  its  foundation.  But 
the  saving  Spirit,  which  has  ever  guided  our 
national  destinies,  rose  bright  and  glorious  above 


UNITED  STATES  V.  HANWAY. 


51 


the  storm ;  pointing  out  to  anxious  patriotism  1 
the  haven  of  peace,  concord  and  union,  in  the 
adoption  of  the  Compromises  of  the  ever-to-be- 
remembered  Session  of  1850.    Among  these  is  to  I 
be  found,  the  Act  of  the  18th  of  September,  1850, 
the  law,  the  execution  of  which  tbis  defendant 
is  charged  in  combination  and  by  preconcert 
with  others,  to  have  resisted  even  unto  blood  and  i 
death.    This  Act,  which  has  been  so  much  com- 
mented upon,  is  in  fact  less  urgent  in  its  fea- 
tures, and  better  calculated  to  prevent  abuses,  \ 
than  the  original  Act  of  February,  1793,  of 
which  it  purports  to  be  an  amendment.    By  the  ' 
Act  of  1793,  any  Magistrate  of  any  County,  City,  j 
or  Town  corporate,  wherein  an  alleged  fugitive  ' 
from  labor  may  have  been  arrested,  is  authorised 
to  take  jurisdiction  of  the  complaint,  and  grant 
the  required  certificate  for  his  removal  to  the  j 
State  or  Territory  from  which  he  has  lied.  In 
lieu  of  this  almost  universal  magistracy,  from 
which  the  claimant  might  have  made  his  choice 
under  the  Act  of  1793,  he  must  under  the  Act  of  j 
1850  make  his  application  to  a  Judge  of  the  Cir-  i 
cuit  or  District  Courts  of  the  United  States,  or 
to  a  Commissioner  appointed  by  the  Circuit 
Court: — an  officer  directly  responsible  to  the 
Judge  of  the  Circuit  Court  of  the  United  States, 
by  whom  he  is  appointed,  and  whose  duty  it  is  to 
see  that  the  high  trust  reposed  by  him  in  such 
Commissioner  is  faithfully,  wisely,  and  humanely 
executed.    This  removes  cne  of  the  objections 
made  to  the  Act  of  1793,  which  was,  that  it  gave  ! 
the  complainant  the  choice  of  the  Magistrate,  to  ' 
whom  he  might  apply,  and  thus  gave  room  to 
the  choice  of  one  whose  prejudices  or  interests  j 
might  be  operated  upon,  to  the  disadvantage  of  i 
the  alleged  fugitive.    The  process  under  the  law 
of  1793,  when  process  preceded  the  arrest  of  an 
alleged  fugitive,  might    be   executed  by  any  I 
peace  officer  selected  by  the  claimant :  while  ! 
under  the  Act  of  1850,  it  must  be  either  executed  ! 
by  the  Marshal  or  his  deputy,  or  by  a  proper  j 
person  designated  by  the  Commissioner  issuing 
the  process  ;  who  is  in  this,  as  in  all  other  parts 
Of  the  execution  of  his  office,  immed.ately  re- 
sponsible to  the  Judge  of  the  Supreme  Court  of 
the  United  States,  by  whom  he  is  chosen.  The 
high,  dignified  and  responsible  public  station  oc- 
capied  by  a  Judge  of  the  Supreme  National  Tri- 
bunal, affords  a  safe  guarantee  that  no  trust  re- 
posed by  him  in  a  subordinate,  shall  be  abused  j 
without  the  certainty  of  prompt  redress.  And 
who  can  doubt  that  if  a  Commissioner  should  . 
abuse  his  power,  in  the  selection  of  the  agent  de- 
eignated  by  him  to  execute  his  process,  the 
Judge  from  whom  he  derived  his  functions  would 
promptly  deprive  him  of  them. 

The  Act  of  1793,  like  that  of  1850.  authorized  j 
the  original  arrest  of  the  fugitive  without  war- 
rant. In  this  feature  the  laws  are  the  same. 
The  media  of  proof  under  the  two  Acts  are  also 
identical.  They  may  be  either  oral  testimony 
delivered  to  the  judge  or  magistrate  hearing  the 
cause,  or  affidavits  taken  and  certified  by  a 
magistrate  from  the  State  or  Territory  from 
whence  the  alleged  fugitive  is  said  to  have  fled. 
The  conclusiveness  of  the  certificate  of  removal 
is  equal  under  the  two  laws.    Under  the  Act  of 


1850,  it  is  declared  so  in  terms.  Under  the  Act 
of  1793,  it  was  the  same  in  effect,  the  Supreme 
Court  of  this  State  having  so  held,  in  cases  in 
which  attempts  have  been  made  to  go  behind  the 
certificate  of  removal  after  it  had  been  granted. 
If  the  laws  of  1793  and  1850  are  substantially 
identical,  whence  is  it  that  the  latter  has  been 
so  assaulted  ?  And  why  has  the  effort  been  so 
industriously  prosecuted  to  convince  the  people 
of  the  United  States,  that  some  new  and  terrible 
anomaly  has  been  introduced  into  the  National 
Legislation  by  the  Act  of  1850  ?  The  answer  to 
this  inquiry  is  alike  simple  and  conclusive.  The 
Act  of  1793  professed  to  give  a  remedy,  but 
afforded  no  adequate  means  of  enforcing  it, 
independent  of  the  aid  of  the  local  State  magis- 
tracy. State  legislation,  by  interdicting  the 
action  of  the  local  State  magistracy  in  its  execu- 
tion, deprived  the  law  of  vital  power,  made  it 
the  noisy  thunder  which  stuns  and  confuses, 
while  it  deprived  it  of  the  lightning  which 
strikes  and  penetrates.  So  long  as  the  Act  of 
1793  was  suffered  to  sleep  in  the  Statute  Book 
in  lifeless  inactivity,  all  was  well  with  those  who 
were  willing 

"  To  keep  the  word  of  promise  to  the  ear 
And  break  it  to  the  hope." 

But  when  the  Act  of  1850  imparted  life  to  its 
torpid  antecedent,  by  giving  it  a  sanction  by 
which  its  promises  could  be  enforced  and  real- 
ized, then  burst  forth  the  clamors  against  the 
law,  which  have  so  long  filled  the  public  ear. 
B.emedial  laws,  without  corresponding  sanctions, 
by  which  their  proposed  remedies  may  be  ob- 
tained, are,  at  best,  legislative  cheats.  Honest 
legislation  never  professes  to  afford  a  remedy, 
without  furnishing  the  means  necessary  and 
proper  to  attain  it. 

To  furnish  such  means  of  arriving  at  Consti- 
tutional rights,  was  the  end  and  object  of  the 
Act  of  1850,  to  which  the  Act  of  1793  had  be- 
come inadequate,  by  reason  of  counteracting 
State  legislation.  This,  and  no  more,  is  the 
head  and  front  of  the  offending  of  the  calumni- 
ated law.  It  was  against  the  execution  of  this 
law.  that  the  defendant  arrayed  himself  by  com- 
bination, confederacy  and  preconcert  with  others, 
who  are  hereafter  to  answer  for  their  participa- 
tion in  the  crime.  It  was  in  opposition  to  the 
execution  of  this  law,  that  he  associated  himself 
with  others  equally  reckless ;  armed  with  the 
weapons  of  blood  and  death.  It  was  with  this 
object  and  by  this  association,  that  the  blood  of 
an  unoffending  American  citizen,  entering  into 
our  Commonwealth  in  pursuit  of  his  legal  rights, 
and  acting  under  the  sanction  of  the  laws  of  the 
Union,  has  been  shed.  Shall  this  deed  of  blood 
and  horror  escape  unpunished  ?  Shall  its  repe- 
tition be  invited  by  the  impunity  which  shall 
follow  the  offender  ?  The  response  to  these  ques- 
tions must  come  from  the  Jury  Box.  There 
rests  its  terrible  responsibility.  If  this  response 
shall  be  in  the  affirmative,  then  a  dark  and 
heavy  cloud  will  have  passed  over  the  sun-light 
of  the  American  Union,  for  when  the  laws  of 
the  Union,  enacted  in  pursuance  of  the  Constitu- 
tion and  responsive  to  its  most  direct  obligations, 


52  TREASON 


cannot  be  enforced  in  its  Judicial  Tribunals, 
then,  indeed,  is  the  beginning  of  the  end  arrived. 

The  subject  which  remains  for  me  to  consider 
is,  whether  the  facts  which  I  expect  to  prove, 
amount  to  such  a  forcible  resistance  of  the  public 
law,  as  makes  the  actors  in  it  guilty  of  Treason, 
in  levying  war  against  the  United  States.  I  pro- 
pose now  to  consider  this  question,  and  with  that 
view,  invite  your  attention,  as  well  as  that  of  the 
Court,  to  a  consideration  of  the  law  of  the  case. 
I  need  not  say  that  you  will  receive  the  law 
from  the  Court,  and  that  you  are  bound  by  the 
instructions  which  the  Court  may  give  in  respect 
to  it.  In  this  particular,  there  is  no  difference 
between  civil  and  criminal  causes.  It  is,  there- 
fore, in  no  sense  true,  that  you  are  judges  of 
the  law ;  and  you  must  take  the  interpretation 
which  the  Court  puts  upon  it.  You  have  a  right 
to  apply  the  law  to  the  facte,  but  you  have  no 
right  to  go  further.  What  then  is  the  law '?  I 
have  stated  that  treason  against  the  laws  of  the 
United  States  consists,  according  to  the  Consti- 
tution, only  in  levying  war  against  the  United 
States,  and  giving  to  their  enemies  aid  and  com- 
fort. What  is  meant  by  levying  war  against 
the  United  States,  I  proceed  now  to  consider.  It 
is  a  phrase,  the  meaning  of  which  is  well  settled 
and  understood,  both  in  England  and  the  United 
States.  The  Statute  of  25th  Edward  III.,  chap. 
2,  contains  seven  decriptions  of  treason,  and 
two  of  them  are  thus  stated  by  Blackstone  : 

1st.  If  a  man  do  levy  war  against  our  Lord 
the  King  in  his  realm. 

2d.  If  a  man  adhere  unto  the  King's  enemies 
in  his  realm,  giving  to  them  aid  and  comfort  in 
the  realm  or  elsewhere. 

These  are  the  two  kinds  of  treason  which  are 
defined  in  the  Constitution  of  the  United  States, 
and  the  words  used  to  describe  them  are  bor- 
rowed from  the  English  Statute,  and  had  a  well- 
known  legal  signification  at  the  time  they  were 
used  by  the  framers  of  the  Federal  Constitution. 
This  is  expressly  stated  by  Chief  Justice  Mar- 
shall, 2  Burr's  trial,  401,  his  language  being 
that  "  It  is  reasonable  to  suppose  the  term  levy- 
ing war  is  used  in  that  instrument  in  the  same 
sense  in  which  it  is  understood  in  the  English 
law  to  have  been  used  in  the  Statute  of  25  Ed- 
ward III."  He  then  adds,  "that  principles  laid 
down  by  such  writers  as  Coke,  Foster  and  Black- 
stone,  are  not  lightly  to  be  rejected."  He  then 
defines  at  page  408  in  what  levying  war  con- 
sists;  viz.  "  That  where  a  body  of  men  are  as- 
sembled for  the  purpose  of  making  war  against 
the  Government,  and  are  in  a  condition  to  make 
war,  the  assemblage  is  an  act  of  levying  war." 
Coke,  Foster,  and  the  other  English  elementary 
writers  clearly  maintain  the  doctrine  that  any  re- 
sistance to  an  Act  of  Parliament  by  combination 
and  force,  to  render  it  inoperative  and  ineffective, 
is  treason  by  levying  war ;  and  the  American 
authorities  adopt  the  English  doctrine.  In  the 
cases  of  the  Western  Insurgents,  2  Dallas,  345,  347, 
355,  also  reported  in  Wharton's  State  Trials,  182, 
Judge  Patterson  says,  "  If  the  object  of  the  in- 
surrection was  to  suppress  the  Excise  office,  and 
to  prevent  the  execution  of  an  Act  of  Congress  by 
force  and  intimidation,  the  offence  in  legal  estima- 


CASES. 


tion  is  high  treason  ;  it  is  an  usurpation  of  the 
authority  of  the  Government.  It  is  high  treason 
by  levying  war."  Judge  Iredell,  in  the  cases 
of  the  Northampton  Insurgents,  in  his  charge  to 
the  Grand  J  ury  says,  "lam  warranted  in  saying, 
that  if  in  the  cases  of  the  insurgents  who  may 
come  under  your  consideration,  the  intention 
was  to  prevent  by  force  the  execution  of  an  Act 
of  Congress  of  the  United  States  altogether,  any 
forcible  opposition  calculated  to  carry  that  in- 
timidation into  effect,  was  a  levying  of  war 
against  the  United  States,  and  of  course  an  act 
of  treason.  But  if  its  intention  was  merely  to 
defeat  its  operation  in  a  particular  instance,  or 
through  the  agency  of  a  particular  officer,  from 
some  private  or  personal  motive,  though  a  high 
ofi'ence  may  have  been  committed,  it  did  not 
amount  to  the  crime  of  treason.  The  particular 
motive,  must  however,  be  the  sole  ingredient  in  the 
case,  for  if  committed  with  a  general  view  to  ob- 
struct the  execution  of  the  Act,  the  offence  must  be 
deemed  treason."  In  Fries'  case,  Wharton's  State 
Trials,  534,  Judge  Peters,  in  his  charge  to  the 
Grand  Jury  says,  "  It  is  treason  in  levying  war 
against  the  United  States  for  persons  who  have 
none  but  a  common  interest  with  their  fellow- 
citizens,  to  oppose  or  prevent  by  force,  numbers, 
or  intimidation,  a  public  and  general  law  of  the 
United  States,  with  intent  to  prevent  its  opera- 
tion, or  compel  its  repeal."  Again,  "  although 
but  one  law  be  immediately  assailed,  the  trea- 
sonable design  is  completed,  and  the  generality 
of  the  intent  designated  by  a  part  assuming  the 
government  of  the  whole.  Though  punishments 
are  designated  by  particular  laws  for  certain  in- 
ferior crimes,  which  if  prosecuted  as  substan- 
tive offences,  and  the  sole  object  of  the  prose- 
cution, are  exclusively  liable  to  the  penalties 
directed  by  those  laws,  yet  when  committed  with 
treasonable  ingredients,  these  crimes  become  only 
circumstances  or  overt  acts.  The  intent  is  the 
gist  of  the  offence  in  treason."  Judge  Ire- 
dell, in  Fries'  case,  immediately  follows  Judge 
Peters  ;  and  referring  to  the  law  laid  down 
by  Judges  Patterson  and  Peters  in  the 
Western  Insurgents,  (2  Dallas  R.  355,)  says, 
"As  I  do  not  differ  from  that  decision,  my 
opinion  is  that  the  same  declarations  should  be 
made  upon  the  points  of  law  at  this  time." 
Judge  Chase  on  the  second  trial  of  Fries,  was 
on  the  bench,  and  in  an  elaborate  opinion  he 
maintains  the  doctrine  which  had  been  ruled  in 
the  previous  cases.  Judge  Story,  in  his  charge 
to  the  Grand  Jury,  delivered  June  15,  1842,  (1 
Story's  Rep.,  614,)  says,  "It  is  not  necessary 
that  it  should  be  a  direct  and  positive  intention 
entirely  to  overthrow  the  Government.  It  will 
be  equally  treason  if  the  intention  is  by  force  to 
prevent  the  execution  of  any  one  or  more  of  the 
general  laics  of  the  United  States,  or  to  resist  the 
exercise  of  any  legitimate  authority  of  the  Go- 
vernment in  its  sovereign  capacity.  Thus,  if 
there  is  an  assembly  of  persons,  with  force  with 
intent  to  prevent  the  collection  of  taxes  lawful, 
or  duties  levied  by  the  government,  or  to  destroy 
all  custom  houses,  or  to  resist  the  administration 
of  justice  in  the  United  States,  and  they  proceed 
to  execute  their  purpose  by  force,  there  can  be 


UNITED  STATES  V.  HANWAY. 


53 


no  doubt  it  would  be  treason  against  the  United  ! 
States."'  Judge  King,  in  his  charge  to  the  Grand 
Jury,  on  the  occasion  of  the  Kensington  riots, 
holds  the  same  doctrine.  His  language  is,  "  that 
where  the  object  of  a  riotous  assembly  is  to  pre- 
vent, by  force  and  violence,  the  execution  of  any 
statute,  or  by  force  and  violence  to  compel  its  ! 
repeal  by  the  legislative  authority,  or  to  deprive  j 
any  class  of  the  community  of  the  protection 
afforded  by  law,  as  burning  down  all  churches  | 
or  meeting-houses  of  a  particular  sect,  under 
color  of  reforming  a  public  grievance,  or  to  re- 
lease all  prisoners  in  the  public  jails  and  the 
like,  and  the  rioters  proceed  to  execute  by  force 
their  predetermined  objects  and  intents,  they 
are  guilty  of  high  treason  in  levying  war."  To 
the  same  effect  is  the  charge  of  the  District 
Judge,  (Hon.  John  K.  Kane,)  delivered  to  the 
Grand  Jury  on  the  29th  of  September  last.  He 
Bays,  "the  expression  levying  war  embraces  not  [ 
merely  the  act  of  formal  or  declared  war,  but 
any  combination  forcibly  to  prevent  or  oppose 
the  execution  or  enforcement  of  a  provision  of 
the  Constitution,  or  of  a  public  statute,  if  ac- 
companied or  followed  by  an  act  of  forcible  op- 
position in  pursuance  of  such  combination." 

The  authorities  and  opinions  which  I  have 
quoted,  are  conclusive  on  the  question  of  law, 
and  prove  that  the  forcible  resistance  to  the  exe- 
cution of  the  law  of  the  United  States,  known  as 
the  Fugitive  Slave  law  of  1850,  which  took  place 
at  Christiana  on  the  11th  of  September  last,  in 
which  the  defendant  participated,  with  others, 
if  designed  to  render  its  provisions  inoperative 
and  void,  was  treason  against  the  United  States. 
It  was  a  levying  of  war  within  the  meaning  of 
the  Constitution.  The  intent  with  which  the 
act  was  committed,  is  the  essential  ingredient 
in  the  offence.  If  it  was  not  levelled  at  the 
statute,  but  simply  designed  to  prevent  the 
arrest  of  the  slaves  belonging  to  the  late  Mr. 
Gorsuch,  it  amounted,  so  far  as  the  United 
States  is  concerned,  to  nothing  more  than  a 
high  misdemeanor.  The  death  which  resulted 
from  the  violence,  in  this  aspect  of  the  case, 
would  be  indictable  and  punishable  as  murder 
by  the  laws  of  Pennsylvania,  but  could  not  be 
considered  an  act  of  treason.  It  is  your  peculiar 
province  to  pass  upon  the  question  of  intent,  and 
you  have  a  right  to  infer  treasonable  designs 
from  the  facts  and  circumstances  which  attended 
the  transaction.  The  combination  or  conspiracy 
of  the  defendant  with  others,  forcibly  to  resist 
the  law  at  Christiana,  can  be  established  without ' 
direct  proof.  "The  concert  of  purpose,"  says  his  | 
honor  Judge  Kane,  "maybe  adduced  from  the  ! 
concerted  action  itself,  or  it  may  be  inferred  from  I 
facts  occurring  at  the  time  or  afterwards,  as  well 
as  before.*'  In  this  particular  case,  however, 
there  is  no  necessity  for  inferential  proof,  so  far 
as  this  defendant  is  concerned.  His  resistance 
to  the  law  was  open  and  declared.  He  avowed 
his  determination  on  the  spot,  not  to  regard  the 
provisions  of  the  Fugitive  Slave  Law  of  1850,  or 
any  other  Act  of  Congress  upon  that  subject,  and 
the  very  presence  of  an  armed  band  of  negroes,  in 
who  had  come  together  to  resist  the  law,  he  de-  j 
clared  that  its  supremecy  should  not  be  maintained  | 


by  him.  and  that  the  rights  of  these  insurgents 
were  superior  to  any  statute  of  the  United  States. 
"They  are  armed,"  was  his  language,  "and  can 
defend  themselves." 

It  is  manifest  therefore,  that  Castner  Han- 
way,  so  far  as  in  him  lay,  had  resolved  to  pre. 
vent  the  execution  of  these  fugitive  slave  laws 
in  every  instance,  and  to  make  them  a  dead 
letter  in  the  neighborhood  and  county  in  which 
he  resided,  so  far  as  any  ability  or  influence  of 
his,  could  contribute  to  that  end.  His  conduct 
and  language  towards  Kline,  incited  and  en- 
couraged all  that  followed  afterwards,  and  the 
prisoner  is  legally  and  morally  responsible  for 
it  all.  Had  he  chosen  to  discountenance  this 
flagrant  violation  of  law,  and  held  the  excited 
and  infuriated  blacks  in  check,  the  reputation 
of  Pennsylvania  never  would  have  been  tar- 
nished by  the  disgraceful  occurrences  of  Chris- 
tiana, and  a  worthy  and  respected  citizen  of  an 
adjoining  state  would  not  have  been  wantonly 
and  wickedly  murdered  in  cold  blood,  while  en- 
gaged in  the  assertion  of  his  legal  rights.  On 
Castner  Hanway  especially  rests  the  guilt  of  the 
innocent  blood  which  was  spilt  on  that  occasion. 
He  may  finally  escape  its  consequences  before 
this  jury,  because  of  some  flaw  or  defect  in  our 
proof,  but  he  never  can  flee  from  the  reproaches 
of  his  OAvn  conscience,  or  the  condemnation 
which  every  honorable  and  upright  citizen  will 
pronounce  upon  his  conduct.  He  is,  however, 
in  your  hands,  and  I  will  say  nothing  that  is  in 
any  way  calculated  to  create  or  array  prejudices 
against  him  or  his  case. 

I  have  thus,  Gentlemen  of  the  Jury,  in  the  ex- 
ecution of  my  duties  as  opening  counsel  for  the 
United  States,  detailed  the  facts  of  the  cause 
you  are  about  to  try,  as  I  believe  they  will  be 
established  by  the  evidence:  and  have  also  ex- 
plained the  legal  principles  which  I  consider  ap- 
plicable to  them.  My  duties  in  this  respect  are 
therefore  fulfilled.  Your  graver  and  more  solemn 
one  is  about  to  commence.  "Never  were  duties 
more  intensely  interesting  in  their  character,  or 
more  absorbingly  important  in  their  results.  The 
simple  fact,  that  the  issue  you  are  about  to  de- 
termine, involves  the  life  of  a  human  being,  im- 
parts to  it  an  absorbing  interest,  and  demands 
what  I  am  satisfied  it  will  receive,  your  anxious, 
scrupulous,  and  careful  attention. 

But  the  inherent  gravity  of  such  an  issue  as- 
sumes even  a  deeper  responsibility,  from  the  na- 
ture of  the  accusation  involved  in  it,  and  from 
the  influence  your  verdict  may  have  on  the  future 
harmony  and  permanence  of  the  National  Union. 
It  may  be  that  the  great  political  problem  is  now 
to  be  solved  by  you,  whether  the  Constitution  of 
the  United  States,  and  every  part  of  it,  is  to  be 
recognised  and  regarded  throughout  this  land  as 
the  Supreme  Law:  whether  its  unequivocal  man- 
dates are  to  be  esaded  and  disregarded,  or 
whether  they  are  to  be  obeyed,  in  that  spirit  of 
honesty  and  sincerity,  so  necessary  to  its  per- 
petuity, and  so  essential  to  its  effective  action  as 
the  guardian  of  the  rights  of  each  individual  citi- 
zen, as  well  of  the  sovereign  States  composing  the 
American  Union.  With  you  the  deep  trust  may 
be  safely  reposed.     This  venerated  hall  from 


54 


TREASON  CASES. 


which  the  Declaration  of  American  Independence 
was  first  proclaimed  to  an  admiring  world,  never 
can  be  the  scene  of  the  violation  of  the  Constitu- 
tion, the  noblest  product  of  that  Independence. 
For  my  own  part,  I  enter  into  this  investigation 
with  the  most  absolute  and  abiding  confidence  in 
the  jury  box.  The  experience  of  my  life  has 
convinced  me  of  the  intelligence,  patriotism,  and 
honesty  of  American  juries.  I  have  ever  found 
them  thoroughly  imbued  with  the  belief,  that  in 
them  was  essentially  reposed  the  administration 
of  the  public  law.  Without  fidelity  and  intelli- 
gence in  the  jury  box,  the  wisdom  of  the  law- 
giver would  be  fruitless  and  unavailing. 

All  I  ask  of  you,  Gentlemen,  is  what  I  know 
you  will  readily  award  me, — a  verdict  according 
to  law  and  the  evidence  in  the  cause.  Although 
your  duties  are  solemn,  they  are  simple,  when 
confined  within  their  legitimate  limits.  You  are 
not  called  to  determine  upon  the  policy  or  im- 
policy of  a  public  law.  That  belongs  to  another 
branch  of  the  Government,  selected  by  the  peo- 
ple for  that  purpose,  and  directly  responsible  to 
them  for  their  acts.  To  you  rightly  belongs  the 
determination  of  the  question,  whether  the  pub- 
lic laws  have  or  have  not  been  infracted.  If  the 
evidence,  therefore,  brings  home  to  this  prisoner 
the  crime  charged  against  him  in  the  indictment, 
faithful  to  the  oaths  you  have  taken,  faithful  to 
your  duties  as  citizens,  faithful  to  your  high 
trust  as  jurors,  you  will  so  pronounce  the  verdict 
without  other  hesitation  than  that  cautious  con- 
sideration demanded  in  the  execution  of  great 
and  responsible  duties.  Of  course,  if  the  proofs 
are  inadequate,  you  will  as  unhesitatingly  acquit 
the  prisoner.  The  Government  of  the  United  States 
simply  asks  that  the  public  laws  shall  be  faith- 
fully executed.  It  seeks  not  victims  ;  it  demands 
not  innocent  blood.  But  it  does  ask,  that  the 
blood  of  an  unoffending  citizen  shall  not  be  shed 
with  impunity  on  the  soil  of  Pennsylvania,  and 
under  the  shelter  of  the  laws  of  the  Union  ;  that 
those  laws  shall  not  remain  a  lifeless  letter  on  the 
Statute  Book,  but  be  vindicated  and  maintained, 
and  that  the  promises  of  the  Constitution  shall 
be  kept  with  every  member  of  the  confederacy, 
in  the  spirit  and  in  the  truth,  with  which  that  in- 
trument  came  to  us  from  the  great  Fathers  of 
the  Revolution. 

MR.  Z.  COLLINS  LEE,  of  Baltimore,  U.  S. 
District  Attorney,  appeared  for  the  prosecution 
on  the  part  of  the  State  of  Maryland. 

Mr.  G.  L.  Ashmbad.  I  shall  now  proceed  to 
offer  evidence  on  the  part  of  the  United  States 
in  this  cause.  I  offer  now,  may  it  please  the 
Court,  the  record  of  this  Court,  entitled,  "  The 
Minutes  of  the  Circuit  Court  from  May  Sessions 
1844,  to  October  Sessions  1847.' 

Judge  Grier.  What  is  the  purpose  of  your 
offer  ? 

Mr.  G.  L.  Ashmead.  To  prove  the  appoint- 
ment of  Edward  D.  Ingraham  as  a  Commissioner 
under  the  Act  of  Congress,  on  the  6th  of  Octo- 
ber, 1845.  The  entry  is  as  follows  :  "  Monday, 
6th  October,  1845.  The  Circuit  Court  is  opened, 
E.  D.  Ingraham  appointed  Commissioner,  &c." 

Judoe  Grier.  Are  there  any  objections  ? 

Mr.  Read.  No,  sir,  I  believe  not. 


Judge  Grier.  Very  well,  this  is  in  evidence. 

Edward  D.  Ingraham  called  and  sworn. 

Mr.  G.  L.  Ashmead.  As  Commissioner  ap- 
pointed by  this  Court,  did  you  issue  that  deputa- 
tion to  Henry  H.  Kline?  (the  paper  is  handed 
to  the  witness.) 

Witness.  Yes,  sir. 

Mr.  G.  L.  Ashmead.  I  propose  to  read  that 

Mr.  Cuyler.  Let  it  go  in  for  what  it  is  worth. 

Mr  G.  L.  Ashmead  reads  it. 

Mr.  G.  L.  Ashmead.  Will  you  be  good  enough 
to  say  whether  as  Commissioner  you  also  issued 
these  warrants?  (warrants  handed  to  witness.) 

Witness.  Yes,  sir. 

Mr.  G.  L.  Ashmead.  I  propose  to  read  these 
warrants  in  evidence.  I  will  read  one  which  will 
be  a  specimen  of  the  whole.  The  first  is  as  fol- 
lows. 

UNITED  STATES  OP  AMERICA. 
Eastern  District  of  Pennsylvania,  ss. 
Edward  D.  Ingraham,  a  Commissioner  under  the 
Act  of  Congress  of  the  20th  February,  1812,  duly 
appointed  by  the  Circuit  Court  of  the  United  States, 
for  the  Eastern  District  of  Pennsylvania,  in  the 
Third  Circuit  :— 

To  the  Marshal  and  Deputy  Marshals  of  the 
United  States  for  the  Eastern  District  of  Pennsyl- 
vania, and  to  Henry  H.  Kline,  by  me  appointed  to 
execute  warrants  and  other  process,  issued  by  me 
in  the  performance  of  my  duties  as  Commissioner. 

Whereas,  It  has  been  legally  charged  before  me 
that  Noah  Buley,  a  mulatto,  being  a  person  held  to 
Service  or  Labor  in  the  State  of  Maryland,  and 
owing  such  Service  or  Labor  to  a  certain  Edward 
Gorsuch  of  Baltimore  county,  in  the  State  of  Mary- 
land, under  the  laws  of  the  said  State  of  Maryland, 
hath  escaped  therefrom  into  the  Eastern  District  of 
Pennsylvania:  NOW,  In  pursuance  of  the  Acts  of 
Congress  of  the  United  States,  in  this  behalf  made 
and  provided,  and  by  force  of  the  authority  vested 
in  me  as  Commissioner,  I  DO  by  this  warrant 
empower  and  command  you,  that  you  apprehend 
the  said  Noah  Buley,  if  he  be  found  within  this 
District,  and  that  you  cause  him  to  be  brought 
forthwith  before  me. 

Given  under  my  hand  and  seal,  at  Philadelphia, 
in  the  County  of  Philadelphia,  this  Ninth  day 
of  September,  a.  d.,  1851. 

Ed wd.  D.  Ingraham,      [l.  .s] 
Commissioner. 

The  second  is  a  warrant  of  the  same  date  and 
purport,  to  the  same  person,  to  arrest  Nelson 
Ford. 

The  third  is  a  warrant  of  the  same  date  and 
purport,  to  arrest  Joshua  Hammond. 

The  fourth  is  a  warrant  of  the  snme  date  and 
purport,  to  arrest  George  Hammond;  all  of  them 
being  alleged  to  be  slaves  of  Edward  Gorsuch 
of  Maryland,  and  fugitives  from  his  service. 

Thomas  S.  Stewart  is  called  but  does  not 
answer. 

Mr.  G.  L.  Ashmead.  He  has  been  directed  to 
be  here  half  a  dozen  times,  and  three  or  four 
persons  are  out  now  after  him. 

Judge  Kane.  Make  proof  of  service. 

Henry  PI.  Kline  called. 

Mr.  Read.  Before  the  examination  of  this 
witness  is  commenced,  will  your  honors  permit 
me  to  ask  the  Court  to  exclude  all  the  other  wit- 


UNITED  STATES  V.  HANWAY. 


55 


nesses  from  tins  examination?  Oar  object  is  to 
let  each  witness  tell  his  own  story,  in  his  own 
way.  and  without  hearing  others. 

Mr  G.  L.  Ash  me  ad  I  do  not  know  that  we 
have  any  objection  to  interpose,  there  are  one  or 
two  members  of  the  Gorsuch  family  that  we  de- 
sire to  have  in  the  Court-room,  the  Rev.  Mr. 
Gorsuch  particularly. 

Judge  Grier.  The  request  of  the  defendant's 
counsel  is  reasonable  and  just.  It  is  proper  that 
a  number  of  witnesses  testifying  to  the  same 
transaction,  may  not  have  an  opportunity  of 
hearing  each  other 

Mr.  G.  L.  Ashmead.  It  extends  to  both  sides? 

Mr.  Read.  Yes,  sir 

Mr.  J.  W.  Ashmead.  I  want  the  Rev.  Mr. 
Gorsuch  to  be  present,  he  may  be  a  witness  to 
some  incidental  transactions,  not  of  anything  at 
Christiana. 

Judge  Grier.  Of  course.  It  applies  to  wit- 
nesses who  are  to  testify  to  the  same  transact- 
ion and  whose  testimony  may  differ,  so  that  they 
may  not  make  up  a  story  together.  But  a  wit- 
ness who  may  be  called  on  some  collateral  fact, 
it  might  not  extend  to  him. 

Mr.  G.  L.  Ashmead.  I  understand  your  honor 
to  say,  that  the  Rev.  Mr.  Gorsuch,  who  is  to  be 
called  to  a  collateral  matter,  may  remain  in  the 
room  ? 

Judge  Grier.  Of  course,  if  there  is  no  object- 
ion, and  I  suppose  there  will  be  none. 

Mr.  Read.  We  make  no  objection. 

Judge  Kane.  You  may  find  it  convenient  to 
appoint  a  place  where  they  may  remain.  I  be- 
lieve an  arrangement  has  been  made  by  the 
Marshal  to  have  rooms  provided  for  them. 

Judge  Grier.  We  will  have  to  detail  an  offi- 
cer to  take  these  witnesses.  The  Marshal  will  see 
that  these  witnesses  have  some  convenient  place. 

Mr.  Ludlow.  Mr.  Dickenson  Gorsuch  has, 
ever  since  this  transaction,  labored  under  a  dif- 
ficulty from  his  wounds,  and  it  is  essential  to  his 
health  that  he  should  be  most  especially  taken 
care  of. 

Judge  Grier.  The  officer  will  take  care  to 
provide  for  them  rooms  well  heated,  and  where 
they  will  have  conveniences  in  sitting. 

The  other  witnesses  are  called,  and  sent  out. 

Mr.  Lewis.  Do  we  understand  your  honor's 
direction  to  extend  to  the  exclusion  of  our  wit- 
nesses at  present,  or  when  our  case  is  opened  ? 

Mr.  G  L.  Ashmead.  I  suppose  the  witnesses 
on  the  part  of  the  defendant  ought  to  be  exclud- 
ed at  the  same  time  as  ours  ? 

Judge  Grier.  All  who  are  to  give  testimony 
to  the  same  transaction,  and  may  fix  their  story 
to  contradict  or  agree  with  each  other,  should  be 
absent. 

Mr.  Stevens.  "We  have  not  the  subprena  for 
our  witnesses  here,  but  if  we  give  notice  to  all  the 
witnesses  summoned  on  the  part  of  the  defend- 
ant to  withdraw,  I  have  no  doubt  they  will  obey 
It.     They  are  so  directed.  ^ 

Henry  H.  Kline  sworn. 

Mr.  Lewis.  Is  there  no  room  in  the  State 
House  to  which  our  witnesses  can  retire  ? 

Judge  Kane.  I  presume  there  are.  I  direct- 
ed several  rooms  to  be  arranged  so  as  to  enable 


the  witnesses  on  both  sides  to  be  accommodated. 
There  are  at  least,  two  rooms,  I  know 

Thomas  S.  Stewart,  having  in  the  meantime 
arrived,  is  called  and  sworn. 

Examined  by  Mr.  G.  L.  Ashmead. 

Question.    Are  you  a  surveyor  ? 

Answer,    Yes,  sir. 

Question.    And  draftsman  ? 

Answer.    Yes,  sir. 

Question  Will  you  state  whether  you  pro- 
ceeded to  the  house  of  William  Parker,  near 
Christiana,  and  made  a  draft  of  the  house,  and 
roads,  and  the  country  adjacant  ? 

Answer.  I  proceeded  to  the  house  that  I 
supposed  was  his,  but  I  have  no  knowledge  of  it 
myself,  except  what  I  was  told,  and  I  made  a 
draft. 

Question.  Is  that  the  draft  ?  (Is  handed  a 
paper.) 

Answer.    Yes,  sir,  this  is  it. 

Question.  Are  the  places,  the  roads,  and  the 
distances  marked  on  that  plan,  correctly  marked 
and  measured  ? 

Answer.  All  the  distances  given  are,  except 
this  house,  the  distance  is  not  given  ;  it  is  in  a 
north-easterly  direction  from  Parker's.  I  sup- 
pose it  to  be  about  1750  feet  from  it. 

Question.  Look  at  this  sketch,  (another  pa- 
per handed  to  the  witness)  and  say  whether  it  is 
a  perspective  view  of  the  same  place  ? 

xInswer.  Yes,  sir,  this  is  the  point  of  view 
marked  on  the  plan ;  this  is  a  perspective  view 
of  the  house  and  grounds. 

Question.  On  the  lower  part  of  that  plan,  is 
there  a  plan  of  a  house  made  by  you  ? 

Answer.  Yes,  it  is  said  to  be  Mr.  Carr's  house. 

Question.    How  far  was  that  from  Parker's? 

Answer.  That  is  more  than  I  can  tell.  In 
getting  to  it  we  were  lost,  and  did  not  go  the  di- 
rect road.  I  suppose  it  is  between  two  and  three 
miles.  On  the  plan  there  are  the  plans  of  the 
first  and  second  stories  of  what  is  called  Parker's 
house,  marking  the  doors,  partitions,  and  the 
manner  in  which  it  is  divided  into  rooms,  and 
the  stairway. 

Mr.  G.  L.  Ashmead.  I  will  hand  to  your 
honors  the  draft  in  perspective,  and  the  other  I 
beg  to  hand  to  the  jury. 

Judge  Kane.  (To  the  witness.)  Is  this  laid 
down  absolutely,  by  a  camera  ? 

Answer.  No,  sir;  it  is  drawn  by  the  rules  of 
perspective  from  this  plan. 

Question.    Do  you  mean  to  include  the  trees  ? 

Answer.  Ye-^,  sir ;  they  are  located  upon  the 
plan  as  I  found  them  in  the  orchard  I  cant  say 
they  are  the  exact  number.  I  counted  the  num- 
ber of  rows,  and  left  out  one  where  I  saw  one 
was  gone.  There  are  five  one  way,  and  six  the 
other;  one  was  dead.  The  remainder,  I  think, 
are  right. 

Cross-examined  by  Mr.  Lewis. 

Mr.  Lewis.  I  see  you  have  marked  one  tree 
here. 

Witness.  That  tree  I  was  told  to  mark  par- 
ticularly ;  I  did  not  do  it  by  measurement,  I 
merely  did  it  by  the  eye. 

Question.  You  took  no  measurement  in  re- 
gard to  it  ? 


56 


TREASON  CASES. 


Answer.  No,  sir ;  it  was  a  prominent  oak  tree. 

Re-examined  by  Mr.  Ludlow. 

Mr.  Ludlow.  You  were  asked  by  our 
friends  on  the  other  side,  in  regard  to  that  tree 
that  you  marked  without  special  measurement ; 
why  did  you  place  it  in  that  position  on  the  plan, 
and  who  were  the  gentlemen  present  when  it 
was  done  ? 

Mr.  Lewis.    That  wont  do. 

Mr.  Ludlow.  If  it  is  meant  that  the  counsel 
for  the  prosecution  have  put  upon  the  plan  just 
what  they  wished,  and  nothing  else,  we  wish  to 
show  that  Mr.  David  Paul  Brown  suggested  to 
him  to  put  that  in. 

Mr.  Lewis.  The  witness  knowing  nothing 
about  the  circumstances  must  have  received  from 
some  quarter  an  intimation  to  put  the  tree  upon 
the  plan ;  it  is  sufficient  for  him  to  state,  that  he 
received  these  directions.  My  question  was  not 
that  he  should  state  what  were  the  directions. 

Judge  (trier.  We  don't  know  what  the  diffi- 
culty is  about. 

Mr.  Ludlow.  Here  is  a  tree  marked  upon  that 
plan,  essential  to  the  proper  understanding  of 
the  case.  That  tree,  Mr.  Stewart  remarked,  in 
answer  to  a  question  from  the  other  side,  was 
placed  there  under  the  direction  of  some  indi- 
vidual. I  wish  it  understood  that  the  plan, 
taken  under  my  direction  on  the  part  of  the 
United  States,  is  an  accurate  plan,  and  that  that 
tree  was  marked  upon  it,  at  the  suggestion,  not 
only  of  myself,  but  of  Mr.  Brown,  one  of  the 
counsel  for  some  of  the  defendants,  who  was 
present  on  the  ground. 

Judge  Grier.  If  there  is  such  a  tree  on  the 
ground,  it  is  not  an  attempt  to  put  a  falsehood 
on  the  paper. 

Mr.  Lewis.  I  asked  the  witness  whether  he 
had  taken  a  measurement  as  to  a  particular  tree 
marked  and  he  said  he  had  not,  and  he  is  asked 
on  the  opposite  side  what  directions  he  had, 
and  reference  is  made  to  something  said  by  Mr. 
Brown,  who  is  not  associated  with  us  in  this  case. 

Judge  Grier.  Is  there  not  a  tree  there,  do 
you  say  it  is  incorrect  ? 

Mr.  Lewis.  There  are  a  number  of  trees  on 
the  ground,  this  is  a  tree  standing  in  the  woods. 

Judge  Grier.  What  harm  does  it  do  ?  Is  it  a 
false  representation  of  a  fact  ? 

Mr.  Lewis.  No  sir.  We  have  the  fact  that  no 
measurement  was  made — and  then  there  is  a 
question  from  the  other  side  as  to  what  direc- 
tions he  received  as  to  marking  the  tree. 

Mr.  Ludlow.  All  I  care  about  is,  that  the 
sketch  is  an  accurate  sketch  of  the  premises. 

Judge  Kane.  I  understand  Mr.  Stewart  to 
say  he  put  it  there  hy  estimate  ? 

Witness.  Yes  sir. 

Henry  H.  Kline,  examined  by  Mr.  G.  L.  Ash- 
mead. 

Question.  Are  you  the  person  to  whom  that 
deputation  is  directed  ?    (Hands  papers.) 
Answer.  Yes  sir. 

Question.  Are  you  also  the  person  to  whom 
these  warrants  are  directed  ?    (Hands  papers.) 
Answer.  Yes  sir. 

Question.  Did  you  proceed  to  serve  these 
warrants  at  any  time  ? 


Answer.  I  did  sir. 

Question.  At  what  time  did  you  leave  the  city 
for  that  purpose  ? 

Answer.  On  the  9th  of  September,  1851,  be- 
tween the  hours  of  one  and  two  o'clock,  as  near 
as  I  can  remember. 

Question.  Were  you  to  meet  any  persons  be- 
tween this  and  the  place  to  which  you  were  going  ? 

Answer.  I  was  to  start  on  ahead  in  the  after- 
noon and  engage  a  vehicle.  I  wras  to  go  to 
Penningtonville. 

Question.  Who  were  you  to  meet  ? 

Answer.  I  was  to  meet  Mr.  Edward  Gorsuch, 
John  Agan,  Thompson  Tully,  Mr.  Gorsuch's 
nephew  and  three  or  four  other  gentlemen. 

Question.  Do  you  recollect  the  names  of  the 
other  gentlemen  ? 

Answer.  One  was  Dr.  Pierce,,  one  was  named 
Gorsuch,  and  the  other  named  Nelson 

Question.  You  say  there  was  a  nephew — was 
there  a  son  of  Mr.  Edward  Gorsuch  ? 

Answer.  Yes  sir,  his  name  was  Dickinson 
Gorsuch — they  were  the  parties  to  meet  me  at 
Penningtonville. 

Question.  Did  you  meet  them  there  ? 

Answer.  No  sir. 

Question.  Why  not? 

Answer.  I  went  from  Philadelphia  to  West- 
chester, and  there  I  took  a  vehicle  to  Gallagher- 
ville,  and  hired  a  pair  of  horses  and  vehicle  to 
take  me  to  Penningtonville.  In  the  road  from 
Gallagherville  to  Penningtonville  the  wagon  broke 
down  ? 

Question.  Was  that  the  reason  you  did  not 
meet  them  at  Penningtonville 
Answer.  Yes  sir. 

Question.  Will  you  state  where  you  did  meet 
them  ? 

Answer.  After  the  wagon  broke  down  we  un- 
hitched the  horses  and  came  b.ick,  and  got  an- 
other vehicle  and  started  on  again.  I  eajne  to 
Penningtonville  and  got  out;  as  I  got  out,  I  saw 
a  colored  man  named  Samuel  Williams;  I  got  out 
and  went  into  the  tavern. 

Question.  Was  he  a  dark  or  light  colored 
man  ? 

Answer.  Light  yellow.  His  residence  is  in 
7th,  below  Lombard,  Philadelphia.  I  saw  him 
at  Penningtonville. 

Question.    How  far  is  that  from  Christiana  ? 

Answer.    They  call  it  a  mile  and  a  half. 

Question.    What  day  was  this  ? 

Answer.  I  saw  him  on  the  morning  of  the 
10th  of  September  last,  between  the  hours  of 
twelve  and  two,  as  near  as  I  can  remember. 

Question.  How  long  did  Williams  remain 
there  with  you  ? 

Answer.  I  cant  tell.  I  went  into  the  tavern, 
and  I  spied  him  there.  I  asked  the  bar-keeper 
whether  he  had  seen  two  horse  thieves,  two  men 
going  up  the  turnpike  on  horseback. 

Question.  Had  you  any  conversation  with 
Williams  ? 

Answer.    I  had. 

Question.    Did  he  know  you? 

Answer.    He  did. 

Question.    Did  he  speak  to  you  by  name  ? 
Answer.    Not  exactly  by  name.    When  I  was 


UNITED  STATES  V.  HANWAY. 


57 


talking  about  the  horse  thieves,  he  said  they  had 
been  here  and  gone ;  you  have  come  too  late. 

Question.    You  left  Penningtonviile  then  ? 

Answer.  I  started  from  Penningtonviile  to 
go  to  a  place  called  the  Gap.  After  I  had  started 
some  hundred  yards  I  looked  back  and  I  saw  a 
man  of  the  same  description,  with  a  white  round- 
about on,  following  the  wagon ;  he  followed  us, 
I  suppose,  a  mile  or  a  mile  and  a  half. 

Question.    Who  did? 

Answer.  Samuel  Williams.  I  knew  him  by 
the  description  of  the  same  roundabout,  and  the 
straw  hat.  After  I  got  to  the  first  tavern  at  the 
Gap,  I  stopt.  I  went  in  and  asked  the  landlord 
if  he  had  seen  two  men,  horse  thieves,  going  up. 
I  concluded  he  would  follow,  and  I  would  throw 
him  off  the  track.  He  said  no  :  but  he  had  seen 
a  couple  of  men,  very  suspicious  looking,  and 
they  had  gone  to  Philadelphia.  We  then  left  and 
stopt  at  the  Gap  tavern,  and  pat  up  our  horses : 
that  was  about  three  o'clock,  as  near  as  I  can  re- 
member, on  the  10th  of  September.    We  put  our 


officers  af  this  city.  Mr.  Agan  is  a  constable  of 
3d  Ward,  Southwark. 

Question.  You  told  Mr.  Gorsuch  that  they 
were  going  to  return  to  Philadelphia  ? 

Answer.    Yes,  sir. 

Question.    You  also  said  that  you  yourself 
had  made  no  arrangements  with  them? 
Answer.    Xone  at  all. 

Question.  Who  was  your  arrangement  made 
with  ? 

Answer.  Mr.  Agan  was  in  company  with  Mr. 
Gorsuch,  who  wished  him  to  go  with  us,  and  I 
accepted  his  services. 

Question.    Was  that  the  same  with  Tully? 

Answer.    Yes.  sir. 

Question,  After  you  had  told  Mr.  Gorsuch 
that  Mr.  Agan  and  Mr.  Tully  were  about  to 
return  to  Philadelphia,  what  did  you  do  ? 

Answer.  I  then  told  Mr.  Gorsuch  to  let  the 
other  parties  go  down  with  me  to  Gallagherville, 
and  the  old  gentleman  said  he  would  go  back  to 
Parkesburg  and  see  Agan  and  tell  him  about  it. 


horses  away,  and  I  told  the  landlord  we  would  j  I  then  started  to  Gallagherville,  and  I  was  to  go 

down  to  Downingtown  for  fear  that  Mr.  Gorsuch 
would  miss  them  at  Parkesburg,  and  if  I  saw 
them  to  tell  them  to  come  back.  I  went  on 
down  to  Gallagherville,  and  staid  there  until 
about  eleven  o'clock,  and  I  then  started  to  Down- 
ingtown and  waited  till  the  cars  came  down  to 
go  to  Philadelphia,  I  saw  Agan  and  Tully  in 
the  cars.  I  called  Agan  and  told  him  what  Mr. 
I  Gorsuch  had  said.  He  said  no, — that  he  had 
j  seen  Mr.  Gorsuch,  and  was  going  to  Philadelphia, 
i  and  would  meet  us  this  evening  at  Downingtown 
i  in  the  train  coming  up.  I  left  Downingtown,  and 
went  to  Gallagherville.  By  that  time  the  parties 
I  had  come  down,  except  Edward  Gorsuch.  After 
they  had  their  dinners  they  went  into  the  room 
and  laid  down.  Mr.  Gorsuch  made  a  bargain 
that  if  he  didn't  come  down  in  that  train  every- 
thing was  right.  He  was  to  see  the  guide. 
About  three  o'clock  Edward  Gorsuch  came 
and  said  every  thing  was  right.  I  told  him  I 
had  seen  Agan  and  Tully,  and  he  said  yes — he 
had  seen  them  and  made  arrangements  with 
them  to  come  back, — he  had  given  them  more 
money,  and  they  were  to  come  back.  We  staid 
at  Gallagherville  till  11  o'clock.  At  11  o'clock 
on  the  night  of  the  10th,  I  called  them  up,  and 
we  started  from  Gallagherville  down  to  Down- 
ingtown, and  there  we  waited  till  the  cars  came 
up  from  Philadelphia.  We  all  got  in  the  cars 
when  they  stopped,  and  Mr.  Edward  Gorsuch 
requested  me  to  look  up  Agan  and  Tully,  and  I 
went  through  the  cars  and  could  not  find  them, 
and  he  asked  me  to  go  through  again,  and  I 
went  through  the  second  time  and  could  not 
find  them.  We  then  went  up  to  the  Gap,  and 
when  we  got  there,  all  got  out;  from  there  we 
walked  a  mile  down  the  railroad  towards  Chris- 
tiana, 

Question.  When  you  got  to  the  Gap,  what 
o'clock  was  it  ? 

Answer.  As  near  as  I  can  tell  it  might  be 
half-past  one  o'clock.    The  cars  left  Downington 
at  about  half  past  twelve.    We  walked  from  the 
j  Gap  down  towards  Christiana.    We  got  sonie- 
i  wheres  in  the  neighborhood  of  a  mile  I  should 


like  to  have  our  breakfast,  and  we  went  into  the 
bar-room  and  laid  down  on  benches.*  He  told  us 
we  had  better  go  to  bed  and  sleep  for  an  hour, 
and  I  told  him  we  wanted  to  have  our  breakfast 
at  half-past  four  o'clock. 

Question.    Who  was  with  you? 

Answer.  The  name  of  the  man  with  me  was 
Gallagher.  After  that,  we  went  to  bed.  The 
landlord  called  us  up  at  half-past  four  o'clock. 
We  came  down  and  eat  our  breakfast,  and  went 
from  the  Gap  back  to  Parksburg.  I  got  out  of 
the  wagon  and  I  saw  Mr.  Agan  and  Thompson 
Tully  in  the  bar-room  asleep.  This  was  the 
morning  of  the  10th  of  September.  I  shook  Mr. 
Agan  and  called  him  outside  of  the  bar-room, 
and  I  asked  him  where  the  old  gentleman,  Ed- 
ward Gorsuch,  was.  He  said  he  had  gone  over 
to  Sadsbury,  four  or  five  miles  across  on  the 
turnpike.  I  told  him  about  Samuel  YN'illiams, 
and  he  said,  yes,  he  had  come  up  in  the  same 
car  with  him.  I  started  to  go  over  to  Sadsbury 
with  Gallagher,  in  the  wagon.  We  went  over, 
and  met  Mr.  Edward  Gorsuch  and  the  party,  his 
nephew  and  son. 

Question.    What  time  was  that? 

Answer.  As  near  as  I  can  tell,  it  was  about 
nine  o'clock  on  the  morning  of  the  10th. 

Question.  The  gentlemen  you  have  named 
were  with  him  ? 

Answer.  Yes  sir.  Mr.  Gorsuch  was  stand- 
ing on  the  piazza,  I  gave  him  a  nod,  and  walked 
back  towards  the  barn.  I  had  a  conversation 
with  him,  and  I  told  him  of  the  accident  of  the 
wagon,  and  he  said  he  was  sorry.  I  proposed 
that  all  the  party  should  go  to  Gallagherville, 
and  I  stated  that  Mr.  Agan  and  Mr.  Tully  had 
told  me  they  were  going  to  Philadelphia. 

Question.    Were  they  to  accompany  you : 
at  first  arranged  i 

Answer.    Yes  sir. 

Question.    Are  they  officers  of  the  police 
this  city  ? 
Witness. 
Question- 
Answer. 


as 


of 


I  made  no  engagement  with  Tullv. 
Who  is  Tully"? 
I  think  he  is  one  of  the  Sheriff's 


8 


58 


TREASON  CASES. 


think,  and  there  we  met  a  guide — between 
Christiana  and  the  Gap.  The  old  gentleman, 
Mr.  Gorsuch,  told  me  that  was  the  guide,  I  nod- 
ded to  him,  that  was  all.  The  old  gentleman  and 
the  guide  walked  ahead  and  got  somewhere  near 
a  mile  further  towards  Christiana  and  there  we 
stopped,  and  he  pointed  to  a  house  where  one  of 
the  slaves  was  at.  The  old  gentleman  and  I  had 
some  talk  about  it,  and  he  wanted  me  to  split 
the  party.  I  told  him  it  would  take  all  the  force 
we  had  to  take  the  other  two.  This  one  he 
thought  we  could  get  without  trouble.  We 
started  back  towards  the  Gap,  and  our  guide 
took  us  through  a  cornfield,  and  some  four  or  five 
miles  and  we  came  out  on  the  Old  Valley  Road, 
and  we  turned  up  a  long  lane  running  north  and 
south.  We  got  up  that  lane  some  two  or  three 
hundred  yards  and  there  we  stopt.  One  of  the 
party  had  a  carpet  bag,  and  we  took  out  some 
cheese  and  crackers  which  we  eat,  and  we  fixed 
our  ammunitions  and  started.  We  passed  a  farm 
house  and  creek,  as  we  passed  the  creek,  I  think 
Dr.  Pierce  stopped  and  was  going  to  get  a  drink, 
I  said  to  the  old  gentleman,  it  wont  do  to  stop, 
for  it  is  daylight,  and  he  called  them,  and  we  went 
on  some  three  or  four  hundred  yards  and  came 
to  an  orchard  facing  Parker's  house,  the  guide 
pointed  and  showed  us  the  house.  I  was  on  ahead. 

Question.  What  time.was  it  in  the  morning? 

Answer.  It  was  day  break. 

Question.  You  came  to  the  house  of  a  man 
named  Parker,  look  at  that  draft,  and  say, 
whether  it  contains  a  correct  delineation  of  the 
house  and  surrounding  country  ?  (Hands  him 
the  plan.) 

Answer.  I  should  call  that  a  very  good  draft. 

Question.  Will  you  look  at  that,  and  say 
whether  it  is  correct  or  not  ?  (Handed  the  other 
draft.) 

Answer.  I  could  not  tell  anything  at  all  about 
that. 

Mr.  G.  L.  Ashmead.  Go  on,  and  tell  all  that 
occurred  in  order. 

Witness.  When  we  came  within  about  thirty 
or  forty  yards  we  met  a  black  man,  who  came 
out  of  the  short  lane  meeting  us  The  very  in- 
stant he  spied  us  he  took  to  his  heels,  up  the 
lane  into  Parker's  house,  and  I  after  him.  His 
name  was  Josh  or  Nelson.  Mr.  Edward  Gorsuch 
recognized  him,  the  other  one  was  Josh. 

Question.  Did  you  say  there  were  one  or 
two? 

Answer.  One  I  saw,  and  one  ahead,  I  could 
not  tell ;  some  of  the  other  witnesses  saw  him. 

Question.  You  mean  to  say  that  one  was 
named  Josh  and  the  other  Nelson  ? 

Answer.  Yes,  sir.  As  he  ran  1  ran  after  him ; 
as  I  ran  I  fell  over  the  bars  which  crossed  the 
lane,  I  had  my  revolvers  and  I  fell,  the  revolvers 
fell  one  way  and  I  the  other.  These  bars  were 
in  the  short  lane  that  led  to  the  house. 

Question.  What  distance  were  those  bars  from 
the  long  lane  ? 

Answer.  I  should  say  as  near  as  I  can  tell, 
ten  or  fifteen  or  twenty  yards. 

Question.  After  you  got  over  the  bars,  what 
took  place  ? 

Answer.  I  ran  to  the  house  and  saw  this  Nel- 


son, going  into  the  door  and  up  stairs,  and  he 
left  the  door  standing  wide  open.  The  old  gen- 
tleman, Mr.  Gorsuch,  and  one  of  the  others  got 
to  the  door  a  little  before  me.  I  then  went  into 
the  house  and  hallooed  up  stairs  for  the  landlord, 
and  told  him  who  I  was  and  what  I  wanted — he 
made  a  reply,  and  said  they  should  not  come 
down. 

Judge  Grier.  It  would  be  better  if,  instead  of 
relating  it  historically,  you  would  give  it  to  us 
dramatically.  What  did  you  say  and  what  did 
he  say  ? 

Witness.  I  told  him  I  was  deputy  marsh?J — 
that  I  had  two  warrants,  one  against  Nelson  and 
the  other  against  Joshua.  They  told  me  there 
was  no  such  men  of  that  name  in  the  house — 
that  there  was  men  there,  but  that  was  not  their 
names.  I  then  undertook  to  go  up  stairs  and 
Mr.  Gorsuch  at  the  back  of  me.  The  first  thing, 
they  made  a  drive  at  me  with  a  thing  with  prongs 
on  it. 

Judge  Grier.  Do  you  mean  a  pitchfork  ? 

Answer.  No,  sir,  I  don't  know  what  you  call 
it,  it  had  four  or  five  prongs.  They  then  threw 
an'  axe  down.  I  then  told  Mr.  Gorsuch,  the  old 
gentleman,  that  he  had  better  go  outside  and 
talk  to  them  from  the  window.  The  instant  he 
got  outside  they  fired.  I  then  fired.  The  gun 
fired  by  them  was  fired  out  of  the  second  story 
window  at  Mr.  Edward  Gorsuch.  I  saw  it  fired. 
The  gun  hadn't  been  pulled  out  of  the  window 
when  I  was  at  the  door.  After  I  fired  they  got  a 
little  more  quiet.  I  then  called  one  of  the  men 
and  made  them  believe,  I  took  a  piece  of  paper 
out  and  wrote  down,  and  told  him  to  go  to  the 
Sheriff  and  fetch  over  a  hundred  men.  I  thought 
that  would  intimidate  them.  They  began  to  get 
scared  then  and  asked  me  to  give  them  time  to 
consider.  I  had  read  the  warrants  three  times 
to  them,  twice  out  of  doors,  and  once  in  the 
house.  YVhile  we  were  talking  he  asked  me  if  I 
would  send  across  to  a  farm-house  for  a  white 
man.  This  Parker  asked  me — the  one  I  took  to 
be  Parker — he  told  me  he  was  the  landlord  of 
the  house. 

Question.  Was  he  a  black  or  a  white  man  ? 
Answer.  He  was  a  colored  man,  black  or 
yellow. 

Question.   Did  he  say  another  white  man 

was  ? 

Answer.  He  did,  but  I  cant  remember  the 
name.  He  said  it  was  over  the  next  farm,  it 
runs  in  my  mind  it  was  Parnell,  or  some  such 
name  as  that.  I  told  him  I  would.  I  then 
turned  round  to  one  of  the  men  and  asked  him  if 
he  would  go  over,  and  I  told  them  he  started, 
whether  he  went  I  dont  know.  In  the  mean 
while  Mr.  Hanway  came  up  on  horseback.  The 
old  gentleman,  Mr.  Edward  Gorsuch,  requested 
me  to  go  and  ask  him  to  assist  us.  We  found 
that  there  was  a  larger  force  in  the  house  than 
we  calculated.  I  came  out  of  the  house  and 
went  to  the  bars  where  Mr.  Hanway  was  sitting 
on  a  sorrel  horse,  and  went  up  to  him  and  said, 
"  Good  morning,  sir,"  and  he  made  no  reply.  I 
then  asked  him  his  name,  and  he  allowed  it  was 
none  of  my  business.  I  then  asked  him  if  he 
lived  in  the  neighborhood,  and  he  made  a  remark 


UNITED  STATES  V.  HANWAY. 


59 


in  the  same  -way.  I  then  told  him  who  I  was, 
and  showed  him  my  authority.  I  took  my  papers 
out  and  handed  them  to  him,  and  he  read  them. 

Question.  Did  you  hand  him  these  papers  ? 
(The  warrants.) 

Answer.  I  did,  and  he  read  them  not  only 
once,  but  twice. 

Question.  What  did  you  say  to  him  at  that 
time? 

Answer.  I  told  him  I  was  Deputy  Marshal, 
and  came  to  arrest  two  fugitives  belonging  to 
Edward  Gorsuch. 

Question.  When  you  told  him  that,  what  did 
he  say  ? 

Answer.  He  allowed  that  the  colored  people 
had  a  right  to  defend  themselves.  There  was 
some  fifteen  or  twenty  standing  there,  as  near 
as  I  can  tell,  with  their  guns  loaded. 

Question.  Will  you  state  to  the  Court  again, 
exactly  what  Mr.  Hanway  said  at  that  time  ? 

Answer.  After  I  got  through  telling  him 
these  things,  who  I  was,  and  he  had  refused 
to  assist  me,  I  told  him  what  the  Act  of  Congress 
was,  and  urged  him  to  assist  me.  After  I  had 
told  him  my  warrants,  he  read  them  and  handed 
them  back,  and  he  said  the  colored  people  had  a 
right  to  defend  themselves,  and  he  was  not  going 
to  help  me,  and  I  asked  if  he  would  keep  them 
away,  and  he  said  No, — he  would  not  have  any- 
thing to  do  with  them. 

Question.  How  many  colored  persons  were 
assembled  at  that  time  near  where  you  were 
standing? 

Answer.  As  near  as  I  could  judge,  there 
must  have  been  from  ten  to  twenty  ;  they  were 
armed — some  loading  their  guns  in  his  presence. 

Question.  What  were  these  negroes  armed 
with? 

Answer.  They  were  armed  with  guns,  scythes, 
and  clubs  ;  all  had  something,  nearly  all  of  them, 
there  were  very  few  there  but  what  had  some- 
thing. Two  or  three  I  saw  had  nothing  at  all. 
Harvey  Scott  had  nothing,  and  the  first  gang 
had  nothing,  but  nearly  all  the  rest  had  arms 
and  clubs.  I  saw  Harvey  Scott  there,  he  had  no 
arms. 

Question.  Had  these  persons  you  spoke  of 
last,  come  since  your  first  arrival  at  the  house, 
or  had  they  been  there  ? 

Answer.  They  came  there — there  was  about 
fifteen  or  twenty  came  directly  after  Hanway. 
There  was  an  Indian  negro  came  there  a  few 
seconds  after  Hanway,  and  he  had  a  scythe  in 
one  hand  and  a  revolver  in  the  other. 

Question.  Did  the  others  come  up  after  Han- 
way ? 

Answer.  Yes,  sir. 

Question.  And  from  the  same  direction  ? 

Answer.  Yes,  sir,  as  near  as  I  can  tell — some 
came  across  the  field,  but  the  main  body  came 
the  same  way  he  went. 

Question.  What  took  place  further  ? 

Answer.  While  I  was  arguing  with  Hanway 
another  gentleman  came  up,  named  Elijah  Lewis, 
in  his  shirt  sleeves,  with  a  straw  hat  on.  I  called 
on  him  in  the  same  manner  as  upon  Hanway — 
showed  him  my  authority,  and  he  read  it  and 
then  he  handed  the  process  to  Mr.  Hanway,  who 


was  sitting  on  his  horse — that  was  the  second  time 
he  read  it.  He  took  one  of  the  warrants,  opened 
it  and  looked  at  it,  and  he  handed  it  back  again 
to  Mr.  Lewis,  and  Mr.  Lewis  handed  it  back  to 
me.  Mr.  Lewis  replied  in  the  same  way ;  he 
said  the  colored  people  had  a  right  to  defend 
themselves,  and  I  had  better  clear  out.  otherwise 
there  would  be  blood  spilt ;  that  I  could  not  ar- 
rest any  people  there.  I  then  began  to  beg.  I 
found  then  a  large  number  of  colored  people 
coming  up  the  road.  I  then  told  them  that  if 
they  would  not  let  these  colored  people  fire  on 
us,  I  would  withdraw  my  men,  but  I  would  hold 
them  responsible  for  the  slaves.  I  began  to  beg 
again  and  coaxed,  for  God  Almighty's  sake  that 
they  should  not  fire  on  my  men,  and  I  would 
withdraw  them.  They  said  they  had  no  control 
over  them.  Mr.  Lewis  walked  some  three  or 
four  yards,  as  near  as  I  could  tell,  and  I  walked 
with  him,  still  coaxing  him.  Mr.  Hanway  walked 
his  horse  over  to  the  negroes,  some  fifteen  or 
twenty,  and  he  sat  on  his  horse  and  kind  of 
stooped  over  and  said  something  to  them  in  a 
low  voice,  what  that  was  I  don't  know,  but  he 
rode  his  horse  some  twenty  or  thirty  yards. 
This  branch  party,  No.  1,  I  call,  made  one  shout, 
and  one  of  them — military  whiskers,  I  call,  hal- 
looed out  that  "he  was  only  a  deputy" — up  the 
lane  they  went  and  fired. 

The  party  No.  2  came,  and  as  they  came 
up,  I  saw  a  great  crowd,  and  when  they  got 
some  six  or  eight  yards  off,  and  they  saw  me,, 
and  one  or  two  had  their  guns  raising  up.  I 
stood  alongside  of  the  fence,  and  took  hold  of 
the  fence,  and  they  fired,  and  I  over  the  fence 
and  through  the  cornfield,  and  when  they  got 
within  twenty  or  thirty  yards  they  all  fired  and 
up  the  lane  they  went  towards  Parker's  house. 
I  then  came  out  into  the  road  again,  pretty  much 
where  I  left :  the  first  person  I  saw  was  Dr. 
Pearce  and  Mr.  Gorsuch's  nephew  going  down 
the  lane,  the  long  lane  towards  Mr.  Rogers' 
house.  Mr.  Dickinson  Gorsuch  came  out  of  the 
small  lane  into  the  back  lane,  and  I  took  him  by 
the  arm ;  he  was  wounded  in  his  right  arm  and 
somewhere,  so  he  was  bleeding  out  of  his  mouth  ; 
and  I  led  him  from  the  long  lane  up  to  the  woods 
and  I  set  him  on  a  stump  and  there  he  kind  of 
fainted.  I  then  looked  down  the  lane  and  there 
saw  Mr.  Lewis  and  a  boy  I  thought  I  saw  here 
this  morning  in  the  Court,  and  I  called  on  Mr. 
Lewis  to  come  back,  but  the  boy  with  him  turned 
round  his  head  and  shook  his  head,  he  would  not 
come  back.  The  boy  with  Mr.  Lewis  looked  back 
and  still  went  on,  they  walked  very  fast,  and  I 
walked  pretty  fast  to  see  if  I  could  not  catch  up 
to  them.  I  sent  one  of  the  men  with  me  to  fol- 
low him  to  see  where  he  went  to,  and  where  this 
gentleman  went  to  I  don't  know.  I  found  that 
Mr.  Lewis  would  not  come  back  and  I  then  met 
a  colored  man,  I  asked  him  whether  he  could  tell 
where  there  was  a  doctor  about.  He  told  me, 
pointing  his  hand,  some  two  miles  to  Pennington- 
ville.  I  recognized  him  the  very  instant  I  put 
my  eye  upon  him,  and  I  found  him  to  be  one  of 
the  first  men  at  the  house ;  an  old  colored  man. 
I  went  on  a  little  further  and  I  met  a  man  coming 
very  fast  on  horseback,  the  horse  seemed  to  be 


60 


TREASON  CASES. 


in  a  sweat,  He  came  near  where  I  was  and 
hauled  his  horse  up,  and  I  made  a  reply,  I  guess 
you  are  one  of  the  men  giving  these  colored  peo- 
ple information,  and  he  made  no  reply.  I  then 
asked  him  if  he  could  tell  me  where  there  was  a 
doctor  about  the  neighborhood,  he  made  no  an- 
swer. I  asked  him  if  he  knew  where  I  could  get 
a  horse  and  wagon,  and  I  followed  his  horse,  but 
he  gave  me  no  answer  and  went  away,  and  I 
turned  back  towards  the  men.  I  still  kept  my 
eye  on  Mr.  Lewis  and  the  boy  till  we  came  to  the 
cross-road,  Mr.  Lewis  turned  to  the  left  and  the 
boy  to  the  right  to  the  mill  When  I  got  to  the 
end  of  the  road,  I  looked  after  Mr.  Lewis  and  he 
was  out  of  sight.  I  went  up  to  the  brick  mill 
and  stopped,  there  was  a  boy  standing  there  with 
a  straw  hat  on,  in  his  shirt  sleeves.  This  other 
boy  that  I  followed  stopped  and  talked  as  I 
thought  with  the  other  boy  in  the  straw  hat  and 
shirt  sleeves.  I  then  says  to  him,  "  Sonney, 
will  you  tell  me  where  I  can  find  a  doctor,  that  a 
man  was  shot  up  in  the  woods,"  and  he  pointed 
over  in  the  same  direction  to  Penningtonville. 
By  that  he  says,  "  there  comes  a  squire  on  horse- 
back." 

The  gentleman  was  sitting  on  his  horse  in  his 
shirt  sleeves.  I  told  him  what  had  happened, 
and  I  asked  him  where  there  was  a  doctor,  and 
I  think  he  told  me  in  the  same  direction  as  the 
others  did,  and  I  then  asked  him  if  he  knew 
where  I  could  get  a  horse  and  wagon.  I  thought 
I  could  take  the  bodies  to  a  doctor  quicker  than 
the  doctor  could  come  there.  I  didn't  wish  to 
let  them  lay  in  the  woods.  At  that  time  I  didn't 
know  that  old  Mr.  Grorsuch  was  shot.  I  then 
started  towards  Penningtonville.  After  I  got 
some  distance,  I  met  one  of  my  men  wounded 
very  bad,  and  he  was  as  crazy  as  a  bed  bug ; 
he  didn't  know  where  he  was.  I  got  talking  to 
him,  and  he  thought  he  was  in  Columbia ;  he 
was  talking  about  one  thing  and  another — non- 
sense. I  then  took  him  by  the  arm  and  led  him 
about  a  mile  this  side  of  Penningtonville,  as  near 
as  I  can  tell  to  a  store.  There  I  got  him  some 
water,  refreshed  him,  and  he  bought  him  a  hat, 
he  had  lost  his  hat.  I  then  offered  a  man  a 
dollar  to  take  us  over  to  Penningtonville, — he 
had  a  horse  and  wagon  there.  He  took  the 
dollar,  and  afterwards  he  said  he  could  not  go, 
and  gave  me  the  dollar  back.  I  then  walked 
him  over.  When  I  got  over  to  Penningtonville 
he  had  come-to  a  little  bit.  When  the  first  train 
came  along  to  go  to  Lancaster,  I  sent  him  home 
to  York  to  some  of  his  relations.  I  then  offered 
five  dollars  a-piece  to  the  neighbors  there,  for 
any  one  to  go  over  and  fetch  Mr.  Gorsuch  in 
a  wagon.  I  found  I  could  not  get  any  doctor — 
there  was  none  about. 

There  was  several  gentlemen  willing  to  go,  but 
they  were  afraid.  One  or  two  of  them  did  start, 
providing  I  would  not  go  with  them — they  were 
afraid  to  be  seen  with  me.  They  told  me  it 
would  be  best  for  me  to  stay  back  at  the  tavern 
and  they  would  ceo  over.  They  did  go  over  and 
*  I  waited  some  hour  or  hour  and  a  half,  I  should 
judge,  and  I  didn't  see  them  come  back.  Some 
of  the  neighbors  had  come  over  from  the  scene 
of  action.    He  had  told  us  that  the  old  gentle- 


man, Mr.  Grorsuch,  was  dead.  I  then  started  up 
to  Christiana  by  the  railroad,  and  I  understood 
they  were  going  to  fetch  the  body  there  to  have 
an  inquest  held  over  it.  After  I  got  there  some 
three-quarters  of  an  hour,  they  fetched  the  body 
there  in  a  wagon — they  took  the  body  out  and 
put  it  into  a  side  room.  About  one  or  two  o'clock, 
as  near  as  I  can  tell,  the  Squire — the  one  I  met 
on  horseback — held  an  inquest,  such  as  it  was, 
I  then  told  them  it  was  a  very  curious  inquest, 
as  there  was  no  witnesses  examined,  and  I  told 
them  I  insisted  upon  it  that  I  should  be  heard 
before  they  gave  their  verdict,  but  they  didn't, 
hear  no  witnesses  but  passed  the  verdict  them- 
selves. I  then  got  some  of  the  gentlemen  there 
to  get  a  coffin  and  shroud  made,  and  had  the 
body  sent  that  night  in  the  train  coming  up  to 
Lancaster,  and  then  on  to  his  family  in  Mary- 
land. I  then  the  next  morning  started  out  to 
see  if  I  could  find  any  of  the  other  wounded  men, 
for  I  had  heard  nothing  of  any  of  them,  nor  seen 
any  thing  of  them  from  the  time  of  the  scene  up 
to  that  time,  excepting  the  one  I  had  sent  home. 
I  had  heard  that  there  was  two  lying  in  the 
woods  wounded  very  bad.  I  then  started  the 
next  morning  with  two  other  men,  and  went  over 
to  see  the  magistrate  and  searched  the  woods  all 
over  and  I  could  not  find  them.  On  the  road  to 
the  scene  of  action,  I  met  Dr.  Pierce  coming 
over  in  a  wagon  with  some  of  the  neighbors.  I 
told  him  that  I  was  very  glad  to  see  him,  and 
we  passed  some  words  and  I  went  on.  I  told 
him  I  was  going  over  to  see  if  I  could  find  the 
other  two,  and  he  said  he  had  heard  nothing  of 
them 

Question.  What  other  two  ? 

Answer.  Mr.  Nelson  and  Mr.  Hutchings. 

After  that  I  came  back,  after  searching  the 
woods,  and  when  I  got  back  to  Christiana,  a 
young  man  came  to  me  and  called  me  inside,  and 
said  don't  make  yourself  uneasy,  your  two  friends 
are  safe  and  eat  breakfast  at  our  house  this 
morning.  That  was  the  last  I  seen  of  them  till 
I  saw  them  in  Lancaster. 

Mr.  Gf.  L.  Ashmead.  How  many  negroes  did 
you  see  collected  together  at  the  scene  of  action  ? 

Answer.  To  the  best  of  my  judgment  there 
was  near  a  hundred,  full. 

Question.  Were  they  all  armed,  as  you  have 
stated  the  first  fifteen  or  twenty  were  armed  ? 

Answer.  Yes,  sir ;  some  had  clubs,  scythes, 
corn-cutters,  and  guns — nearly  all — some  had 
not,  as  I  saw. 

Question.  At  the  time  they  commenced  firing 
where  were  you  standing  ? 

Answer.  I  was  standing  at  the  North  of  the 
small  lane — say  here  is  the  lane  comes  out,  and 
I  was  standing  a  little  near  to  the  lane,  so  that 
I  could  not  see  exactly  up  the  lane  on  account 
of  the  corn. 

Question.  At  the  time  the  firing  commenced 
you  were  in  the  long  lane  ? 

Answer.  Yes,  sir. 

Question.  How  far  were  you  from  the  short 
lane  ? 

Answer.  I  should  judge  as  far  as  frem  here 
to  that  gentleman  in  the  jury  box.  The  way  I 
came  there  was  from  following  Mr.  Lewis. 


UNITED  STATES  V.  HANWAY. 


61 


Mr.  Gr.  L.  Ashmead.  At  that  time,  sir,  -where 
did  you  get? 

Witness.    Over  in  the  corn  field. 

Me.  G.  L.  Ashmead.  At  that  time,  sir,  when 
you  got  over,  where  was  Mr.  Hanway  ? 

Witness.  He  was  sitting  on  his  horse  about 
40  or  50  yards  off,  in  the  long  lane  looking  back. 

Mr.  G-.*L.  Ash:tead.    Was  it  Xorth  or  South? 

Witness.    South,  towards  the  creek. 

Mr.  G.  L.  Ashmead.  Mr.  Kline,  will  you  be 
good  enough  to  say  whether  this  was  the  person 
you  saw  1 

Witness.    That  is  the  gentleman. 

Mr.  G.  L.  Ashmead.  Is  there  any  doubt 
about  that  ? 

Witness.    Xone  at  all  in  the  least. 

Mr.  G.  L.  Ashmead.  Do  you  know  which  is 
South  or  Xorth  ? 

Witness.  No,  sir,  but  when  I  say  South  I 
mean  to  the  left. 

Mr.  G.  L.  Ashmead.  You  mean  to  say  that 
Hanway  was  40  or  50  yards  nearer  the  creek 
than  you  were  ? 

Witness.  Yes,  sir,  between  the  creek  and  the 
small  lane. 

Mr.  G.  L  Ashmead.  What  was  he  doing  at 
the  time  ? 

Witness.  His  horse  was  stopped,  and  he 
looked  up  towards  the  house.  There  was  several 
nesroes  came  up  past  him.  and  cut  across  the 
field. 

Mr.  G.  L.  Ashmead.  Were  these  negroes  who 
passed  him  armed  or  not  ? 

Witness.  I  could  not  see  well.  I  think  one 
had  a  club  or  a  gun.  I  could  not  see  well.  They 
cut  across. 

Mr.  G.  L.  Ashmead.  Did  they  pass  over  close 
to  him  ? 

Witness.  They  came  right  by  his  horse,  and 
nearly  opposite  they  took  and  cut  catee-cornered 
towards  the  house. 

Mr.  G.  L.  Ashmead.  Did  you  see  him  make 
any  attempt  to  stop  them  as  they  passed  him  ? 

Witness.    Xo.  sir. 

Mr.  G.  L.  Ashmead.  I  think  you  have  already 
stated  that  before  he  went  this  distance  of  30  or 
40  yards,  you  had  seen  him  go  up  to  the  negroes 
and  say  something  to  them  in  a  low  tone  of  voice? 

Witness.    Yes.  sir. 

Mr.  G.  L.  Ashmead.  Did  you  hear  what  he 
said  ? 

Witness.    Xo,  Sir. 

Mr.  G.  L.  Ashmead.  What  did  these  negroes 
do.  as  soon  as  he  had  spoken  to  them  ? 

Witness.  He  moved  his  horse  towards  the 
creek.  They  then  gave  one  shout.  One  replied 
that  he  was  only  a  deputy,  and  they  up  the  small 
lane  and  fired. 

Mr.  G.  L.  Ashmead.  This  party  that  fired, 
where  were  they  ? 

Witness.  Show  me  the  map.  That  is  the  small 
lane.    Eight  on  the  end  of  the  lane. 

Mr.  G.  L.  Ashmead.  They  were  about  the 
mouth  of  the  short  lane  ? 

Witness.  Standing  in  the  long  lane,  facing 
the  short  lane.  I  should  judge  as  far  as  from 
here  as  to  the  judges'  bos. 

Judge  Kane.    Facins:  in  which  direction  ? 


Witness.    A  kind  of  facing  the  lane. 

Mr.  G.  L.  Ashmead.  Were  they  facing  Par- 
'  ker*s  house  ? 

Witness.  Yes,  Sir.  I  had  my  back  towards 
:  the  house. 

Mr.  G.  L.  Ashmead.  About  what  distance 
were  you  from  them,  when  they  commenced 
firing  ? 

Witness.    As   I    followed  Mr.   Lewis,  that 
was  the  time  they  shot,  and  they  hallooed  out  he 
;  is  only  a  deputy ;  and  they  up  the  small  lane 
i  and  fired. 

Judge  Kane.  The  witness  has  not  answered 
|  your  question. 

Mr.  G.  L.  Ashmead.  About  what  distance 
were  you  from  them,  when  they  fired  ? 

Witness.  I  should  judge  I  could  not  have 
I  been  further  from  where  T  now  stand,  and  the 
|  end  of  the  Judges'  Bench. 

Judge  Grier.  Ten  or  twelve  yards,  or  eighteen 
or  twenty  feet,  or  how  far  ? 

Witness.  I  suppose  may  be,  about  twenty  or 
thirty  feet. 

Mr.  G.  L.  Ashmead.  Did  they  fire  at  you  ? 
Witness.  Yes,  Sir  ;  the  second  party,  Xo.  2. 
Mr.  G.  L.  Ashmead.  How  long  was  it,  after 
the  firing  of  party  Xo.  1.  that  party  Xo.  2  fired  ? 
Witness.  Shortly  after. 
Mr.  G.  L.  Ashmead.  Can  you  give  us  any 
I  idea  of  the  time  ? 

i     Witness     Xot  over  a  minute  or  two. 

Mr.  G.  L.  Ashmead.  Did  the  second  party 
•  fire  at  you  ? 

Witness.  They  fired  right  over  where  I  was, 
■  and  I  got  into  the  corn  field. 

Mr.  G.  L.  Ashmead.    You  got  over  into  the 
!  corn  field,  and  that  saved  you  ? 
j     Witness.    Yes,  Sir. 

Mr.  G.  L.  Ashmead.    Will  you  be  good  enough 
!  to  say,  whether  in  the  corn  field,  you  could  see 
over  to  the  bars. 

Witness.    Xot  exactly.    Where  I  was,  I  could 
,  not,  because  I  was  nearer  to  the  fence  than  the 
long  lane.    I  looked  to  see  them.    And  I  went 
;  up  the  lane  and  came  right  out,  and  got  the 
revolver  ready,  and  made  up  my  mind  to  take 
'■  them. 

Mr.  G.  L.  Ashmead.  Did  you  see  Mr.  Edward 
!  Gorsuch  killed  ? 

Witness.    Xo,  Sir. 
Mr.  G.  L.  Ashmead.    You  did  not  ? 
Witness.    Xo,  Sir,  I  never  saw  him  from  the 
time  I  left  him. 

Ji  dge  Grier.  Let  me  ask  a  question.  When 
you  were  first  in  the  house,  when  the  first  gun 
was  fired  out  of  the  window,  was  there  any  per- 
son wounded  on  either  side  ? 

Mr.  G.  L.  Ashmead.    At  the  time  the  first 
!  gun  was  fired,  was  any  one  wounded  ? 
!     Witness.    Xo,  Sir. 

Mr.  G.  L.  Ashmead.  When  you  fired  in  re- 
!  turn  was  any  one  wounded  ? 

Witness.  I  fired  on  purpose  to  scare  them. 
I  fired  my  revolver  right  up  straight  so  as  to  let 
them  know  that  we  had  arms. 

Mr.  G.  L.  Ashmead.    At  the  time  you  saw 
Dickerson  Gorsuch  coming  out  of  the  short  lane, 
;  where  were  vou  ? 


62 


TREASON  CASES. 


Witness.  I  was  in  the  long  lane.  About 
that  distance  from  the  short  lane.  I  took  him 
to  the  long  lane,  thinking  I  would  take  him  away, 
and  there  I  had  to  set  him. 

Mr.  G.  L.  Ashmbad.  Just  be  good  enough  to 
state  his  condition  ? 

Witness.  He  was  wounded  in  his  right  arm, 
through  his  coat  sleeve,  and  somewhere  about 
the  body,  and  bleeding  about  the  mouth. 

Mr.  G.  L.  Ashmead.  Did  you  go  to  his  as- 
sistance ? 

Witness.  I  did,  Sir  ;  and  I  went  away  right 
after.    I  thought  he  was  the  only  one  wounded. 

Mr.  G.  L.  Ashmead.  You  say  you  laid  him 
under  a  tree  ? 

Witness.    Yes,  Sir,  near  a  stump. 

Mr.  G.  L.  Ashmead.  (Showing  him  the  map.) 
Can  you  find  a  tree,  corresponding  with  the  one 
under  which  you  laid  him  ? 

Witness.  That  is  about  the  direction  I  set 
him,  and  there  was  a  tree  close  by. 

Mr.  G.  L.  Ashmead.  About  how  many  feet 
from  the  mouth  of  the  short  lane  was  the  tree  to 
which  you  took  him  ? 

Witness.  It  was  across  the  road  on  the  North 
nearly  facing  the  long  lane. 

Mr.  G.  L.  Ashmead.  When  you  speak  of  the 
North  side,  Mr.  Kline,  just  be  good  enough  to  point 
out  on  the  map  which  side  you  mean. 

Witness.  (Pointing  on  the  map.)  This  is  the 
long  lane,  and  this  is  the  lane  leading  to  Parker's 
house.  I  took  him  out  of  this  lane  and  set  him  on 
the  North  side  of  the  lane  where  the  wood  was, 
near  a  tree  or'Stump. 

Mr.  G.  L.  Ashmead.  When  you  speak  of  the 
North  side,  do  you  know  the  position  in  which  the 
North  and  South  are  ? 

Witness.  No,  sir.  The  reason  I  call  it  the 
North  side  is  because  it  was  the  North  of  me. 

Mr.  G.  L.  Ashmead.  Was  it  upon  the  side  on 
which  the  woods  were  situated  ? 

Witness.    Yes,  sir. 

Mr.  G.  L.  Ashmead.  Was  Dickerson  Gorsuch 
badly  wounded  ? 

Witness.    He  was,  sir. 

Mr.  G.  L.  Ashmead.    Could  he  help  himself? 

Witness.  No,  sir,  or  otherwise  I  should  have 
taken  him  to  the  nearest  farm  house  I  could  have 
taken  him  to. 

Mr.  G.  L.  Ashmead.  Had  you  any  conversa- 
tion with  Mr.  Hanway  in  regard  to  any  law  of 
Congress  ? 

Witness.    I  had,  sir. 

Mr.  G.  L.  Ashmead.  Be  good  enough  to  state 
to  the  Court  and  Jury  what  it  was. 

Witness.  After  he  refused,  I  told  him  what 
the  act  of  Congress  was  as  near  as  I  could  tell 
him.  That  any  person  aiding  or  abetting  a  fu- 
gitive slave,  and  resisting  an  officer,  the  punish- 
ment was  $1000  damages  for  the  slave,  and  I 
think  to  the  best  of  my  knowledge  imprisonment 
for  five  years.  I  told  him  that.  He  said  he  did 
not  care  for  any  act  of  Congress  or  any  other  law. 
That  is  what  he  said. 

Mr.  G.  L.  Ashmead.  Was  this  after  he  had 
heard  the  warrant  ? 

Witness.    Yes,  sir, 

Mr.  G.  L.  Ashmead.    You  have  said  you  laid 


Dickerson  Gorsuch  under  this  tree.    Did  you  see 
Dr.  Pearce  and  Joshua  upon  that  occasion  ? 
Witness.    I  did,  sir. 

Mr.  G.  L.  Ashmead.    What  were  they  doing  ? 
Witness.    They  were  going  down  towards  the 
creek. 

Mr.  G.  L.  Ashmead.  Were  they  walking  or 
running  ? 

Witness.    Eunning  as  hard  as  they  could  go. 
Mr.  G.  L.  Ashmead.    La  what  lane  were  they 
running  ? 

Witness.    The  long  lane  towards  the  creek. 

Mr.  G.  L.  Ashmead.  Were  they  or  were  they 
not  pursued  ? 

Witness.    They  was,  sir. 

Mr.  G.  L.  Ashmead.  Who  were  they  pursued 
by? 

Witness.  By  a  large  number  of  colored  peo- 
ple with  guns  and  other  weapons. 

Mr.  G.  L.  Ashmead.  Did  you  see  them  catch 
up  to  Hanway? 

Witness.  I  saw  Mr.  Gorsuch  try  as  far  as  I 
could  see  to  get  behind  the  horse. 

Judge  Kane.    Which  Mr.  Gorsuch  ? 

Witness.   Joshua  M.  Gorsuch. 

Mr.  G.  L.  Ashmead.  Did  he  succeed  in  getting 
behind  the  horse  ? 

Witness.  It  seemed  to  me  he  was  trying  to 
get  behind  the  horse  to  save  himself,  or  to  get  on 
the  horse  or  something  or  other. 

Judge  Kane.    Whose  horse  was  that  ? 

Mr.  Cuyler.  Mr.  Hanway's  horse  he  is  speak- 
ing of. 

Mr.  G.  L.  Ashmead.  You  are  speaking  of 
Hanway's  horse,  are  you  not  ? 

Witness.  Yes,  sir,  he  was  sitting  on  the  horse 
at  that  time. 

Mr.  G.  L.  Ashmead.  After  you  saw  him  try- 
ing to  get  behind  the  horse  what  else  did  you  see  ? 

Witness.    I  thought  I  could  see  him  go  further. 

Mr.  G.  L.  Ashmead.  What  did  Hanway  do  at 
that  time  ? 

Witness.  He  sat  still  on  his  horse,  and  the 
horse  was  in  a  trot  or  a  run — he  was  going  pretty 
fast. 

Mr.  G.  L.  Ashmead.    Did  you  see  Joshua 

Gorsuch  afterwards  ? 
Witness.    Yes,  sir. 

Mr.  G.  L.  Ashmead.    How  long  afterwards  ? 

Witness.  I  cannot  tell  exactly  the  time.  He 
was  the  one  I  met  between  Peningtonville  and 
the  mills.    He  was  hurt  pretty  bad. 

Mr.  G.  L.  Ashmead.  How  far  from  the  scene 
of  action  was  he  when  you  saw  him  ? 

Witness.  I  should'  judge  one  mile  or  one  and 
a  half  mile.    I  cannot  exactly  tell  the  distance. 

Mr.  G.  L.  Ashmead.  What  was  his  condition 
at  that  time  ? 

Witness.  He  was  cut  over  the  body  and  hurt 
very  bad. 

Mr.  G.  L.  Ashmead.    Where  ? 

Witness.  Over  the  head,  down  his  back,  and 
he  was  hurt  so  bad  that  he  had  not  his  right 
senses. 

Mr.  G.  L.  Ashmead.  Did  I  understand  you 
to  say,  that  at  that  time  he  was  not  in  his 
senses  ? 

Witness.    Yes,  Sir. 


UNITED  STATES  V.  HANWAY. 


63 


Mr.  Gr.  L.  Ashmead.    Did  you  see  where  lie 
vent  to,  Sir,  at  that  time? 
Witness.    What  time  ? 

Mr.  Gr.  L.  Ashmead.  At  the  time  you  met 
him  about  a  mile  and  a-half  from  the  scene  of 
action  ? 

Witness.    I  took  him. 

Me.  Gr.  L.  Ashmead.  Where? 

Witness.    To  Peningtonville. 

Judge  Griee.    Is  that  the  same  person? 

Mr.  Cutler.  He  merely  called  him  one  of 
his  men  before. 

Mr  G.  L.  Ashmead.  You  say  you  saw  Han- 
way  coming  up  to  the  bars  on  horseback? 

Witness.    Yes,  Sir. 

Mr.  Gr.  L.  Ashmead.  Will  you  say,  when  he 
first  came  up  to  the  bars,  what  the  negroes  did? 

Witness.  He  had  not  been  there  no  time, 
before  No.  1  party  came  up,  and  they  stood  and 
leaded  their  guns  in  his  presence. 

Mr.  G.  L.  Ashmead.  At  the  time  Hanway 
came  to  the  bars,  or  shortly  afterwards,  did  you 
see  the  negroes  in  the  house  do  anything? 

Witness.  No,  Sir.  Not  from  the  time  I  left 
the  house,  until  I  got  down  to  the  bars. 

Mr.  G.  L.  Ashmead.  Mr.  Kline.  Did  you 
see  Mr.  Hanway  the  next  day  after  this  occur- 
rence had  taken  place  ? 

Witness.  No,  Sir.  I  saw  him  the  next  morn- 
ing.   Do  you  mean  the  day  after  the  occurrence? 

Mr.  G.  L.  Ashmead.  That  is  what  I  asked 
you.    Where  did  you  see  him  ? 

Witness.  Sitting  on  the  porch  of  the  house, 
which  I  should  call  Mr.  Rbdgers'  house,  beyond 
the  creek,  near  the  scene  of  action. 

Me.  G-.  L.  Ashmead.  Did  you  have  any  con- 
versation with  him  ? 

Witness.  Not  there,  Sir.  I  merely  passed, 
as  I  was  going  to  the  woods  to  search  for  these 
men.    Two  other  gentlemen  were  with  him. 

'  Mr.  G.  L.  Ashmead.  You  had  no  conversa- 
tion with  him  at  that  time  ? 

Witness.    Not  at  all. 

Mr.  G.  L.  Ashmead.  Did  you  see  him  after  that? 

Witness.  Yes.  On  the  day  of  the  arrest  at 
Christiana.    That  was  on  the  twelfth. 

Mr.  G.  L.  Ashmead.  You  say  you  saw  him 
at  Christiana  ? 

Witness.    Yes,  Sir.   I  saw  him  on  the  twelfth. 

Mr.  G.  L.  Ashmead.  I  thought  it  was  on  the 
thirteenth  when  he  was  arrested  ? 

Witness.  It  was  on  the  twelfth  or  thirteenth, 
in  the  afternoon. 

Mr.  G.  L.  Ashmead.  You  saw  him  at  Chris- 
tiana ? 

Witness.    Yes,  Sir. 

Mr.  G.  L.  Ashmead.  Whereabouts  at  Chris- 
tiana.   What  house  ? 

Witness.  After  the  warrants  were  issued ; 
some  one  gave  him  notice  that  the  arrest  was 
going  to  be  made  ;  he  then  came  over  and  gave 
himself  up. 

Mr.  Cutler.  It  was  a  voluntary  surrender. 

Mr.  G.  L.  Ashmead.  Were  you  present  at  the 
arrest  ? 

Witness.  Yes,  sir. 

Mr.  G.  L.  Ashmead.  Had  you  any  conversa- 
tion with  them  ? 


Witness.  Yes,  sir. 

Mr.  G.  L.  Ashmead.  What  did  you  say  to 
Hanway. 

Witness.  I  told  him  you  are  one  of  the  men 
and  he  would  not  deny  it.  I  then  went  on  to  say 
something,  and  they  told  me  not  to  say  anything 
to  him. 

Mr.  G.  L.  Ashmead.  What  else  did  you  say? 

Witness.  I  cannot  recollect,  because  somebody 
bothered  me. 

Mr.  Cooper.  You  say  you  saw  Mr.  Hanway 
the  next  morning,  at  Rogers'  ? 

Witness.  I  think  so. 

Mr.  Cooper.  How  far  is  that  from  Parker  s. 

Y\"itness.  I  should  judge  some  400  yards.  It 
might  be  half  or  a  quarter  of  a  mile.  I  cannot 
say.    It  is  upon  the  Creek  and  Granville  Eoad. 

Mr.  Cooper.  Was  any  body  present  the  next 
day  when  he  was  arrested,  and  when  you  said  he 
was  the  person? 

Witness.  A  great  number  of  persons. 

Mr.  Cooper.  Y>  no  ? 

Witness.  Mr.  Reigart.  and  Mr.  Thompson,  the 
District  Attorney  of  Lancaster. 

Mr.  Dee nt.  You  say  that  one  of  the  men  you 
met  in  the  lane  was  Josh  ? 

Witness.  It  was  Nelson. 

Mr.  Brent.  You  say  one  was  Nelson  and  the 
other  was  Joshua.  How  did  you  know  their 
names,  when  you  did  not  know  them  before  ? 

YUtfess.  The  old  gentleman  said,  ''this  is 
Nelson,"  and  he  called  for  him  to  come  down  and 
begged  for  him  to  come  down. 

Mr.  Brent.  How  did  you  know  who  the  other 
was.  I  suppose  it  was  derived  from  the  old  gen- 
tleman ? 

Witness.  Yes,  sir. 

Mr.  Brent.  Which  way  did  they  go  ? 

Witness.  They  got  over  the  fence  and  went 
across  the  orchard. 

Mr.  Brent.  Did  you  hear  any  noise  in  the 
house  when  you  first  went  there  ? 

Witne  ss.  Yes.  sir. 

Mr.  Brent.  What  did  you  hear  ? 

Witness.  First,  I  tell  you  they  began  to  load 
and  make  a  noise  up  stairs. 

Mr.  Brent.  You  heard  the  guns  loading. 

Yvitness.  Yes.  sir. 
IY  Judge  Grier.  Where  the  horns  blown  in  the 
house  or  at  other  places. 

Witness.  I  only  heard  one  horn  in  the  house. 
The  others  seemed  in  the  neighborhood  around, 
as  far  as  I  could  hear  the  sound. 

Mr.  Brent.  That  is  all. 

The  witness  is  cross-examined. 

Mr.  Stevens.  You  have  been  examined  twice 
before  in  Lancaster  county,  I  believe  ? 

Witness.  Once  in  Lancaster,  and  once  in 
Christiana. 

Mr.  Stevens.  Did  you  ever  before  say  in 
either  of  those  examinations,  that  you  heard 
anybody  say  what  the  name  of  the  black  fellow 
was  that  you  first  chased  ? 

Witness.  I  think  I  did. 

Mr.  Stevens.  Where  ? 

Witness.  At  Christiana,  sir. 

Mr.  Stevens.  In  your  deposition  which  you 
1  made  at  Christiana  ? 


64 


TREASON  CASES. 


Witness.  I  think  so,  to  the  best  of  my  knowl- 
edge and  recollection. 

Mr.  Stevens.  That  was  the  deposition  upon 
which  the  warrants  were  issued  to  arrest  the 
parties  that  you  spoke  of? 

Witness.  I  cannot  say  exactly  whether  it 
was. 

Mr.  Stevens.  I  mean  the  deposition  you 
made  at  Christiana  before  Squire  Pownell. 

Witness.  I  made  it  before  the  District  Attor- 
ney, and  Squire  Pownell  was  there,  and  signed 
his  name  to  it.  It  was  made  up  in  quick  hand 
writing. 

Mr.  Stevens.  You  know  what  was  in  the  de- 
position, of  course. 

Witness.  I  cannot  recollect.  I  just  merely 
give  the  outlines. 

Mr.  Stevens.  When  you  were  examined  in 
Lancaster,  didn't  you  say  there  was  but  one  ne- 
gro that  you  chased  down  to  the  house  ? 

Witness.    I  say  so  yet,  that  I  saw  myself. 

Mr.  Stevens.  Who  was  ahead  in  the  chase 
down  the  short  lane,  which  of  your  party ;  or 
were  you  ahead  of  all  the  party  ? 

Witness.  We  pretty  much  started  at  the 
same  time.  They  went  across  the  orchard,  and 
I  went  down  the  lane. 

Mr.  Stevens.  Were  you  ahead,  or  was  any 
body  ahead  of  you? 

Witness.  I  saw  Hanway,  and  then  I  saw 
Gorsuch  and  another  party  ahead  of  him. 

Mr.  Stevens.  How  could  any  party  that  was 
behind  you  see  any  more  than  you  did  ? 

Witness.    I  fell  over  the  rails. 

Mr,  Stevens.    They  passed  you,  then? 

Witness.    Yes,  sir. 

Mr.  Stevens.  You  said  just  now,  that  you 
heard  a  horn  from  the  window  and  others  all 
around  through  the  neighborhood. 

Witness.  I  did  not  say  all  around ;  I  heard 
three  oi\,four. 

Mr.  Stevens.    Were  they  out  of  the  house  ? 

Witness.  I  do  not  know  where  they  were.  I 
only  heard  the  sound. 

Mr.  Stevens.  They  must  have  been  very 
near  or  you  could  not  have  heard  them. 

Witness.  I  could  hear  a  horn  better  than  a 
person  talking. 

Mr.  Stevens.  That  particular  sound  you  can 
hear  further  than  any  other. 

Witness,  I  can  hear  it  further  off  than  a 
person  standing  at  a  great  distance.  The  horn 
at  the  house  I  heard  quite  plain. 

Mr.  Stevens.  Might  not  the  others  you 
heard  he  the  echo  from  those  hills  around  ? 

Witness.    I  do  not  think  so. 

Mr.  Stevens.  I  understand  you  to  say  there 
was  a  party  of  black  people  in  the  long  lane 
when  you  had  the  conversation  with  Mr.  Han- 
way ? 

Witness.    Yes,  sir. 

Mr.  Stevens.  You  stated  in  your  examina- 
tion at  Lancaster,  that  they  took  that  stand  on 
the  opposite  side  of  long  lane,  facing  the  fence ; 
is  that  so  ? 

Witness.  I  told  you  in  my  cross-examination 
they  stood  facing  the  small  lane  in  the  long 
lane. 


Mr.  Stevens.  Did  you  not  say  they  were  on 
the  opposite  side  of  the  long  lane  joining  the 

fence  ? 

Witness.  Yes,  sir.  They  stood  catee-cornered. 

Mr.  Stevens.  Did  they  stand  on  the  side  of 
the  long  lane  furthest  from  you  ? 

Witness.  The  lane  went  this  way,  (pointing 
to  the  right,)  and  I  stood  at  the  mouth  of  the 
small  lane. 

Mr.  Stevens.    You  are  not  very  distinct. 

Witness.  Show  me  the  map.  (Looking  on 
the  map,  and  pointing.)  This  is  the  lane,  there 
is  the  house. 

Mr.  Stevens.  You  say  they  stood  by  this 
fence,  and  on  that  side  of  the  road  ? 

Witness.    I  say  so  yet. 

Mr.  Stevens.    It  was  furthest  from  Parker's 

house  ? 

Witness.    It  was  to  the  left  of  Parker's  house. 

Mr.  Stevens.  That  is,  on  the  side  of  the  long 
lane  most  distant  from  Parker's  house,  and  you 
say  so  now  ? 

Witness.    Yes,  sir. 

Mr.  Stevens.  When  the  conversation  took 
place  between  you  and  Hanway,  in  which  he 
said  they  had  a  right  to  defend  themselves,  you 
were  at  the  bars. 

Witness.  No,  sir.  I  will  explain  myself. 
When  he  came  to  the  bars  I  said,  Mr.  Hanway, 
good  morning. 

Mr.  Stevens.  Tell  me  where  you  were  when 
this  conversation  took  place. 

Witness.    Over  the  bars — 

Mr.  Ashmead.  I  must  insist  upon  this,  that 
when  a  question  is  put  to  a  witness,  and  when 
he  has  stated  a  certain  thing,  and  is  going  on  in 
dstail,  I  do  say  that  he  ought  to  be  permitted  to 
go  on  with  his  statement. 

Judge  Grier.  Let  the  witness  speak  for  him- 
self. 

Mr.  Stevens.  Where  were  you  when  this 
conversation  took  place  between  yourself  and 
Hanway,  that  you  have  already  detailed  ? 

Witness.    I  crossed  over  the  bars  to  give 

 my  watch.    I  got  down  to  the  end 

of  the  lane  crossing  the  road,  and  there  stood 
Hanway,  myself  and  Mr.  Lewis.  Hanway's  peo- 
ple stood  at  the  end  of  the  lane,  at  the  opposite 
side  of  the  big  lane. 

Mr.  Stevens.  Then  this  conversation  you 
have  detailed  took  place  at  the  mouth  of  the 
little  lane  and  the  larger  one,  at  the  end  section 
on  the  side  nearest  to  the  house,  and  not  at  the 
bars  ? 

Witness.  We  continued  conversing  from  the 
bars  to  the  end  of  the  lane,  because  he  worked 
his  horse  back  and  forward  until  he  came  to  the 
end  of  the  lane. 

Mr.  Stevens.  At  that  time  he  said  they  had 
a  right  to  defend  themselves  ? 

Witness.  At  the  mouth  of  the  small  and  big 
lane. 

Mr.  Stevens.  Who  was  present  with  him  at 
that  time  ? 

Witness.  Some  fifteen  or  twenty  colored 
people. 

Mr.  Stevens.  I  speak  besides  the  colored 
people. 


UNITED  STATES  V.  HANAVAY. 


65 


Witness.  L  think  there  was  Dr.  Pierce,  who 
had  come  down  from  the  bars. 

Mr.  Stevens.  Was  Lewis  there  ? 

Witness.  He  had  come  directly  afterwards, 
and  he  said  the  same  in  Lewis'  presence. 

Mr.  Stevens.  And  after  Lewis  came  tip,  he 
repeated  the  same  thing  to  both  of  them  ? 

Witness.  Pretty  much. 

Mr.  Stevens.  That  long  lane  which  was  be- 
tween the  negroes  and  this  spot,  was  about  from 
twenty  to  twenty-five  feet  wide. 

Witness.  I  cannot  tell. 

Mr.  Stevens.  Your  judgment  of  it? 

Witness.  I  put  no  judgment  upon  it. 

Mr.  Stevens.  You  could  have  judged  its 
width  ? 

AVitness.  I  may  give  a  rough  guess,  it  may 
be  fifteen  feet  and  it  may  be  twenty-five. 

Mr.  Stevens.  Was  Mr.  Lewis  down  at  the 
bars  at  all,  and  how  near  the  bars  ? 

Witness.  I  cannot  say,  they  worked  them- 
selves a  kind  of  away,  and  I  a  kind  of  twisted 
myself  round  and  talked  to  them. 

Mr.  Stevens.  Can  you  tell  how  near  to  the 
bar  Mr.  Lewis  was  at  all  ? 

Witness.  I  suppose  he  might  have  been  as 
far  as  from  here  to  the  end  of  the  table,  at  one 
time. 

Mr.  Stevens.  You  say  as  near  to  the  bars  as 
the  length  of  this  table,  Mr.  Kline  ? 

Witness.  Yes.  sir,  as  near  as  I  can  recol- 
lect. 

Mr.  Stevens.  Where  was  Mr.  Lewis  at  the 
time  you  say  that  Mr.  Hanway  rode  the  horse 
across  the  lane,  and  stooped  down  as  if  he  were 
talking  to  the  negroes  ? 

AVitness.  He  had  made  a  move  to  go  away, 
and  he  turned  to  the  left  of  me  to  the  woods. 

Mr.  Stevens.  How  near  was  he  to  you  at  the 
time  this  should  have  taken  place,  and  at  the 
time  you  say  that  Hanway  rode  up  and  said 
scmething  in  a  low  voice  ? 

AAtitness.    He  had  just  left  us.    He  walked. 

Mr.  Stevens.    How  far  did  he  get  ? 

AAtitness.  He  walked  away  and  I  followed 
him  about  the  length  that  gentleman  sits,  (point- 
ing.) 

Mr.  Stevens.    You  were  both  about  that  dis- 
tance when  he  rode  up  to  speak  to  the  negroes  ? 
AVitness.    No,  Mr.  Lewis  was  ahead  of  me. 
Mr.  Stevens.    How  far? 
AAtitness.    I  cannot  tell. 

Mr.  Stevens.  You  do  not  know  how  far 
Lewis  was,  then  ? 

AAtitness.  He  might  have  been  as  far  as  that 
gentleman  sitting  there  is  from  me. 

Mr.  Stevens.    How  far  was  Lewis  off? 

AVitness.    I  cannot  say. 

Mr.  Stevens.  AVas  he  two  or  three  yards 
off? 

AAtitness.  He  was  two  or  three  yards  off,  may 
be  more. 

Mr.  Stevens.  Now,  sir,  before  you  left,  was 
not  there  another  white  man  with  Mr  Hanway, 
that  did  not  belong  to  the  party  ? 

AVitness.  No,  sir,  except  a  boy;  he  came  af- 
terwards. 

Mr.  Stevens.    After  what  ? 


AAriTNESs.    After  the  scene  was  all  over? 
Mr.  Stevens.    Didn't  he  come  before  Hanway 
went  away  ? 

AVitness.    No,  sir. 

Mr.  Stevens.  Then  I  distinctly  understand 
you,  that  before  Hanway  went  away,  there  was 
no  other  boy  present  except  those  belonging  to 
the  party,  and  those  you  have  mentioned  who 
were  at  the  mouth  of  the  lane. 

AAtitness.    None  at  all,  except  the  boy. 

Mr.  Stevens.    AATas  that  boy  there? 

AVitness.    He  came. 

Mr.  Stevens.  AA'as  he  there  before  Mr.  Han- 
way went  away  ? 

AVitness.  Yes,  sir,  I  am  speaking  of  a  white 
boy. 

Mr.  Stevens.  Did  a  white  boy  come  with 
Lewis  ? 

AVitness.    I  judge  he  did. 

Mr.  Stevens.    Did  he  remain  there  ? 

AVitness.  He  stood  away  off,  and  when  they 
had  fired  he  went  away. 

Mr.  Stevens.  Did  he  leave  before  Hanway 
left,  or  after  ? 

AVitness.  He  went  with  Mr  Lewis,  before  Han- 
way.   They  both  nearly  went  at  one  time. 

Mr.  Stevens.  Did  you  ever  see  that  boy,  as 
you  call  him,  since  ? 

AVitness.    I  think  I  have,  I  may  be  mistaken. 

Mr.  Stevens.  AVas  it  not  John  Bodily  who 
was  examined  at  Lancaster  ? 

AVitness.  I  cannot  say  exactly.  He  had  a 
kind  of  a  white  slouch  hat  on.  That  John  Bodily 
was  not  over  at  the  scene  of  action. 

Mr.  Stevens.  AVas  he  there  before  Mr.  Han- 
way rode  away  ? 

AAriTNESS.    No,  Sir.    Not  to  my  knowledge. 

Mr.  Stevens.  AVhen  you  were  examined  at 
Lancaster  you  stated,  you  had  seen  George 
AArashington  Harvey  Scott  there,  did  you? 

AAriTNESS.    Yes,  sir. 

Mr.  Stevens.  And  I  understand  you  to  have 
said  so  now  ? 

AVitness.    I  do,  sir. 

Mr.  Stevens.  Have  you  seen  him  often  since 
that  time  ? 

AAriTNESS.    No,  sir. 

Mr.  Stevens.  Have  you  seen  him  since  that 
time  ? 

AVitness.    I  have. 

Mr.  Stevens.    How  often  ? 

AVitness.  I  saw  him  the  day  we  took  him  to 
prison. 

Mr.  Stevens.  And  you  saw  him  at  Lancaster  ? 
Witness.    Yes,  sir. 

Mr.  Stevens.  And  you  saw  him  on  the 
ground  ? 

AAtitness.    Yes,  sir. 

Mr.  Stevens.  AArhat  time  did  you  see  him  on 
the  ground  ? 

AVitness.  I  saw  him  there  with  the  first 
party. 

Mr.  Stevens.  Did  you  see  him  there  after 
Hanway  came  ? 

AVitness.  I  saw  him  after  Hanway  came, 
because  no  one  came  after  Hanway. 

Mr.  Stevens.  This  man  came  up  with  the 
colored  men  who  came  after  Hanway  came  ? 


66 


TREASON  CASES. 


Witness.    Yes,  sir. 

Mr.  Stevens.  That  is  Harvey  Scott's  father  ? 
Witness.    Yes,  sir. 

Mr.  Stevens.  Might  not  you  be  mistaken 
about  its  being  Harvey  Scott  ? 

Witness.  No,  sir.  I  took  a  good  look  at  him. 
He  seemed  scareish  and  back'd  off  a  little  before 
the  second  firing. 

Mr.  Stevens.    Before  the  firing  at  you? 

Witness.    Yes,  sir. 

Mr.  Stevens.  Did  I  understand  you  to  say, 
that  when  the  first  firing  commenced,  not  the  one 
made  upon  you,  but  that  made  down  the  lane, 
you  were  then  in  the  long  lane  within  12  feet  of 
the  mouth  of  the  short  lane  ? 

Witness.  I  can't  say  whether  it  was  12,  18, 
or  20  feet. 

Mr.  Stevens.  Were  you  there  at  the  time 
the  firing  took  place  down  the  lane  that  killed 
Mr.  Gorsuch? 

Witness.    Yes,  sir. 

Mr.  Stevens.    You  are  quite  sure  you  got 
over  into  the  corn-field  ? 
Witness.  Positive. 

Mr.  Stevens.    You  did  that  when  you  saw 
them  about  to  draw  the  trigger  upon  you  ? 
Witness.    Yes,  sir. 

Mr.  Stevens.  Did  you  get  into  the  field  be- 
fore the  guns  went  off  ? 

Witness.  I  did,  Sir.  I  just  got  down  as  they 
fired. 

Mr.  Stevens.  Where  did  you  stand,  at  the 
time  you  saw  Mr.  Joshua  Gorsuch  and  Dr.  Pierce, 
alongside  of  the  horse  of  Mr.  Hanway,  trying 
to  get  on  ? 

Witness.    I  stood  in,  facing  the  lane. 

Mr.  Stevens.    The  short  lane  ? 

Witness.  No,  Sir ;  I  stood  in  the  long  lane, 
and  I  came  into  the  corn  field. 

Mr.  Stevens.  Did  you  get  out  of  the  long 
lane  into  the  woods,  when  you  saw  Joshua  Gor- 
such and  Dr.  Pierce  trying  to  get  on  to  the  horse. 

Witness.  I  saw  Joshua  Gorsuch  coming  down 
from  the  creek.  Then  Dickerson  came  up,  and 
stood  and  saw  the  parties  run  down  to  the 
creek. 

Mr.  Stevens.  You  were  out  of  the  long 
lane? 

Witness.    No,  sir. 

Mr.  Stevens.  Were  you  out  of  the  long  lane 
at  the  time  ? 

Witness.  I  was  facing  the  long  lane  ;  looking 
right  straight  down  the  long  lane  towards  the 
creek. 

Mr.  Stevens.  Was  that  before  or  after  you 
had  taken  Dickerson  Gorsuch  up  to  the  woods  ? 

Witness.    It  was  afterwards. 

Mr.  Stevens.  Did  Joshua  Gorsuch  and  Dr. 
Pierce  overtake  Mr.  Hanway,  before  or  after  he 
had  crossed  the  creek,  going  up  ? 

Witness.  It  seemed  to  me  it  was  after  he  had 
crossed  the  creek.  I  think  so,  but  ain't  quite 
sure. 

Mr.  Stevens.  After  the  first  time  that  you 
went  up  into  the  woods,  did  you  that  day  go 
over,  down  into  the  short  lane  again  ? 

Witness.    After  I  had  took  Mr.  Gorsuch  ? 

Mr.  Stevens.    No,  after  you  had  went  up  that 


day.  Did  you  go  back  again  to.  the  mouth  of 
short  lane  ? 

Witness.  I  never  went  up  to  the  roads  but 
once,  and  that  was  the  time  I  took  Mr.  Gorsuch. 

Mr.  Stevens.  Then  you  did  not  go  up  to  the 
roads  till  after  all  the  firing  was  over  ? 

Witness.    No,  sir. 

Mr.  Stevens.  Did  you  leave  the  mouth  of 
the  long  lane  at  all,  before  the  firing  was  over  ? 

Witness.    You  mean  the  small  lane. 

Mr.  Stevens.  No,  I  mean  the  long  lane,  if 
you  will  excuse  me. 

Witness.  I  stood  in  the  long  lane,  when  the 
first  took  place,  and  the  second  I  crossed  over 
to  the  corn  field. 

Mr.  Stevens.  Had  you  gone  up  to  the  woods 
until  all  the  firing  was  over  ? 

Witness.  I  took  Mr.  Gorsuch  up  there,  and  I 
did  not  go  back. 

Mr.  Stevens.  Did  you  ever  tell  anybody  that 
you  had  withdrawn,  and  was  up  in  the  woods 
before  the  firing  commenced  ? 

Witness.    No,  sir.    I  am  positive  of  that. 

Mr.  Stevens.  Did  you  ever  tell  any  person, 
that  you  had  withdrawn  from  the  ground  before 
the  firing  commenced  ? 

Witness.    No,  sir. 

Mr.  Stevens.    I  did  not  mean  the  firing  at 
the  house,  but  the  firing  that  killed  Gorsuch  ? 
Witness.    No,  sir. 

Mr.  Stevens.  Had  you  a  conversation  with 
two  persons  at  Hanway's  mills,  when  you  were 
going  off  ? 

Witness.  I  had  a  conversation  with  a  boy. 
I  first  spoke  to  the  squire,  and  I  asked  him  the 
same  thing. 

Mr.  Stevens.  Was  there  not  a  boy  and  a 
short  man  ? 

Witness.  One  a  boy,  and  the  other  Mr.  Lewis. 
The  one  1  saw  with  Mr.  Lewis,  was  the  other 
boy. 

Mr.  Stevens.  You  said  a  while  ago,  he  was 
the  one  you  saw  down  the  lane. 

Mr.  Ashmead.  He  expressly  said  he  could 
not  see  him. 

Mr.  Stevens.  Was  it  the  same  one  you  saw 
at  the  mill  with  Lewis ;  and  the  same  boy  you 
conversed  with  at  the  mill  ? 

Witness.  He  was  not  at  the  mill,  he  was  in 
the  lane." 

Mr.  Stevens.  I  thought  you  said  there  was 
a  boy  with  Lewis  down  at  the  mouth  of  the 
lane? 

Witness.  He  was  between  the  mouth  of  the 
lane  and  the  road  along  the  other  way ;  he  stood 
off. 

Mr.  Stevens.    Which  way  did  he  come  ? 

Witness.  I  should  judge  he  came  from  the 
side  of  the  woods. 

Mr.  Stevens.  Mr.  Lewis  came  down  from 
that  part  of  the  woods  when  he  came  there,  did 
he,  which  turns  out  to  be  the  southern  part  ? 

Witness.  I  do  not  know  whether  it  was  the 
north  or  south. 

Mr.  Stevens.    That  is  the  way  they  came  ? 

Witness.  I  do  not  know  exactly  the  way  they 
came,  because  I  did  not  see  them  until  they  had 
walked  down  along  the  small  lane. 


UNITED  STATES  V.  HANWAY. 


07 


Mr.  Stevens.  I  thought  the  boy  never  got  to 
the  lane  ? 

Witness.  '■>  I  say  the  boy  did  not  come  down  to 
the  mouth  of  the  small  lane,  he  stood  the  length 
of  the  room  off. 

Mr.  Stevens.  "Was  it  towards  the  woods,  or 
up  towards  Roger's  house  ? 

Witness.    Towards  the  woods. 

Mr.  Stevens.  About  the  length  of  this 
room  ? 

Witness.    Yes,  sir. 

Mr.  Stevens.  Did  I  not  understand  you  to 
say,  he  came  with  Lewis  ? 

Witness.  He  came  in  the  same  direction  that 
Mr.  Lewis  did. 

Mr.  Stevens.  Are  you  sure  that  Lewis  came 
down  from  the  woods  ? 

Witness.  I  should  judge  he  came  that  way, 
but  I  cannot  tell. 

Mr.  Stevens.  Then  you  dont  know  which 
way  he  came  ? 

Witness.  No  further  than  he  came  in  that 
direction;  I  cannot  tell  whether  he  came  over 
the  fields  or  not. 

Mr.  Stevens.  Did  you  not  see  this  boy,  you 
now  speak  of,  at  the  mill,  go  with  another  man 
there  before  the  squire  came  up  ? 

Witness.  No,  sir;  I  saw  a  boy  there,  but  no 
body  else. 

Mr.  Stevens.  Then  you  did  not  talk  to  two 
of  them  ? 

Witness.  I  said  nothing  but  to  this  small 
boy,  and  I  asked  him  where  I  could  get  a  horse 
and  wagon. 

Mr.  Stevens.    He  was  the  only  person? 

Witness.    The  other  boy  was  standing  off. 

Mr.  Stevens.    Which  other  boy  ? 

Witness.  The  one  I  followed  down  from  the 
scene  of  action. 

Mr.  Stevens.  I  mean  the  boy  that  went  away 
from  Mr.  Lewis.  Was  that  the  one  that  came 
down  with  him  ? 

Witness.    I  suppose  it  was. 

Mr.  Stevens.    Then  there  were  two  ? 

Witness.    No,  that  was  the  same  boy. 

Mr.  Stevens.  When  you  were  talking  with 
the  boy  at  the  mill,  was  there  any  .other  white 
man  present  ? 

Witness.  Not  at  that  time,  because  the  squire 
was  the  only  white  man  present. 

Mr.  Stevens.  Were  there  two  boys  present 
at  the  mill  when  you  were ''talking  ? 

Witness.    Yes,  sir. 

Mr.  Stevens.  And  both  of  them  heard  what 
you  said. 

Witness.  I  don't  know,  one  was  going  on, 
and  he  a  kind  of  halted. 

Mr.  Stevens.  You  don't  know  whether  he 
heard  you  or  not. 

Witness.    No,  sir. 

Mr.  Stevens.  He  did  not  ask  you  any  ques- 
tions ? 

Witness.    Not  at  all,  sir. 

Mr.  Stevens.  Do  you  know  Mr.  Thomson 
Lawhead  ? 

Y/itness.    Not  that  I  know  of. 

Mr.  Stevens.  But  the  man  that  was  up  at 
the  mill  with  the  boy,  or  the  two  boys,  as  you  call 


them,  was  the  same  one  as  was  down  the  mouth 
of  the  lane  or  near  it  with  Mr.  Lewis  ? 

Witness.  The  boy  that  was  down  near  Mr. 
Lewis,  I  followed  to  the  mill,  and  there  I  left  him. 

Mr.  Stevens.  Where  did  the  other  one  come 
from  ? 

Witness.  He  was  standing  there  very  near 
as  I  came  down. 

Mr.  Stevens.  Then  you  did  not  see  Bodley 
there  at  all  ? 

Witness.    I  don't  recollect  just  now. 

Mr.  Stevens.  You  saw  no  other  white  man 
there  before  Hanway  went  away  clown  the  lane  ? 

Witness.  No,  sir.  If  I  had  I  should  have 
taken  notice. 

Mr.  Stevens.  Did  not  some  one  at  the  mill 
say  to  you,  you  ought  to  come  away  before  the 
firing  took  place  ? 

Witness.  No,  sir.  There  was  not  a  soul 
spoke  a  word  to  me  but  those  two  boys,  and  the 
Squire.' 

Mr.  Stevens.  Did  one  of  these  boys  ask  you 
why  you  did  not  come  away  when  you  saw  all 
those  blacks  ? 

Witness.    No,  sir.  There  was  not  a  soul. 

Mr.  Stevens.  You  did  not  say  you  left  your- 
self, your  men  would  not  come  ? 

Witness.  There  was  not  a  word  passed.  There 
was  not  another  living  soul  there  except  the  Loys 
until  the  Esquire  came  up. 

Mr.  Stevens.  Did  you  know  any  of  the 
blacks  that  were  there  except  Washington  Harvey 
Scott  ? 

Witness.    Yes,  sir. 

Mr.  Stevens.  Please  to  name  any  of  those 
you  knew  to  be  present  ? 

Witness.  It  would  be  hard  for  me  to  recol- 
lect their  name.    I  only  knew  them  by  sight 

Mr.  Stevens.  You  have  given  their  names  at 
Lancaster,  please  to  state  them  now. 

Witness.  I  did  not  give  their  names.  I  only 
gave  descriptions.  I  do  not  know  their  names 
now.  I  might  if  I  heard  them.  I  cannot  recollect 
them  distinctly. 

Mr.  Stevens.  You  spoke  about  Morgan,  was 
he  there  ? 

Witness.    Yes,  sir. 

Mr.  Stevens.  The  Morgan  you  saw  at  Lan- 
caster and  who  is  in  jail  now.  You  are  quite 
sure  ? 

Witness.  I  gave  the  description  you  saw  in 
the  warrant,  before  he  was  arrested. 

Mr.  Stevens.  Henry  Sims,  was  he  there 
Witness.  Yes,  sir. 
Mr.  Stevens.  Before  the  firing  ? 
Witness.  Yes,  sir. 

Mr.  Stevens.  Geo.  Williams,  was  he  there  ? 
Witness.  Yes,  sir. 

Mr.  Stevens.  Nelson  Carter,  was  he  there  ? 
Witness.  By  the  name  I  cannot  recollect. 
Mr.  Stevens.  Then  you  do  not  recollect  Nel- 
son Carter's  being  there  ? 
Witness.  Not  by  name. 

Mr.  Stevens.  Have  you  seen  all  those  in  jail  ? 

Witness.  I  think  I  have. 

Mr.  Stevens.  Were  they  all  there  ? 

Witness.  I  think  they  were. 

Mr.  Stevens.  Were  they  all  present  ? 


G3 


TREASON  CASES. 


Witness.  They  were  all  present  that  I  pointed 
out. 

Mr.  Stevens.  Were  all  those  who  are  now 
confined  in  jail  on  this  charge  present  ? 

Witness.  I  cannot  say  all.  There  might  have 
been  some  others,  arrested  by  other  persons ;  all 

1  saw  up  at  Christiana  are  there,  to  the  best  of 
my  knowledge  and  belief. 

Me.  Stevens.  Did  you  not  swear  against  all 
that  are  here  ? 

Witness.  I  don't  know,  there  might  have  been 
some  others  sworn. 

Mr.  Stevens.  Have  you  not  been  to  the  jail 
to  see  them  ? 

Witness.  I  only  saw  one  or  two.  It  is  only 
once  I  was  down  there. 

Mr.  Stevens.  Chas.  Hunters,  do  you  remem- 
ber him  ? 

Witness.  Not  by  name. 

Mr.  Stevens.  Was  he  there  or  not? 

Witness.  If  I  was  to  see  him  I  could  tell. 

Mr.  Stevens.  If  the  Court  please,  the  course 
of  our  defence  requires  that  these  prisnners  should 
be  brought  into  Court,  that  the  witness  should  see 
them.  I  would  ask  that  the  Court  direct  them 
to  be  brought  up. 

Judge  Grier.  If  it  is  necessary. 

Mr.  Stevens.  I  deem  it  necessary.  Mr.  Kline 
has  heretofore  identified  most  of  these  men.  I 
want  to  prove  what  he  says  is  false,  and  thereby 
to  show  that  he  don't  know  who  are  and  who  are 
not  prisoners.  I  shall  want  him  to  swear  from 
his  present  recollection,  of  those  that  were  or 
were  not  present.  I  deem  it  very  essential,  be- 
cause you-r  Honors  will  perceive  this  is  the  lead- 
ing witness  on  the  part  of  the  United  States.  It 
is  our  object,  (I  do  not  say  how  far  we  shall 
succeed),  but  it  is  our  object  to  break  down  his 
evidence  and  prove  it  entirely  false,  and  for  that 
reason  I  shall  ask  that  these  men  be  brought 
into  Court. 

Judge  Grier.  Go  on  with  the  cross-examina- 
tion. 

Mr.  Ashmead.  I  have  no  objection,  on  the 
part  of  the  Government,  to  interpose  to  this 
motion.  If  they  are  brought  up  and  identified, 
well  and  good.  It  is  a  collateral  issue,  and  the 
moment  it  is  done,  the  gentlemen  are  bound. 

Mr.  Stevens.  It  is  not  a  collateral  issue.  If 
there  is  war  made  we  must  see  the  soldiers.  We 
will  go  on  with  the  other  part  of  the  cross-ex- 
amination, but  we  may  be  obliged  to  discharge 
the  witness  until  they  have  brought  these  parties 
here. 

Mr.  Lewis.  Regular  trains  run  twice  a  day  to 
Penningtonville,  and  you  went  to  Chester.  What 
was  the  reason,  instead  of  going  there  direct? 

Witness.  I  got  up,  and  found  there  was  no 
conveyance  to  go  to  Gallagherville,  between  1  or 

2  o'clock.  I  inquired,  and  they  said  there  was 
no  train  went  up  till  10  o'clock  that  evening.  I 
sat  down  and  began  to  consider.  It  struck  me 
about  the  West  Chester  cars,  and  I  went  down 
to  Rice,  the  collector,  and  asked  him  what  time 
the  cars  went.  I  sat  down  and  smoked  a  segar 
with  him,  until  the  cars  went  up.  I  then  got 
inte  the  cars  and  went  to  West  Chester.  I  got 
there  about  dusk. 


Mr.  Lewis.    Were  you  not  aware  that  a  train 
started  at  that  time  for  Penningtonville  ? 
Witness.    No,  sir. 

Mr.  Lewis.    When  you  were  at  West  Chester 
you  took  a  driving  conveyance  to  Gallagherville  ? 
Witness.    Yes,  sir. 
Mr.  Lewis.    Did  you  go  direct  then  ? 
Witness.    Yes,  sir. 

Mr.  Lewis.    Did  you  not  go  to  Mortonville  ? 
Witness.    I  went  to  Gallagherville  and  had 
my  supper  there. 

Mr.  Lewis.    Did  you  stop  on  the  way? 
Witness.    No,  sir. 

Mr.  Lewis.  Did  you  not  stop  at  Mortonville, 
and  there  make  arrangements  with  an  individual 
to  have  his  horse  and  wagon  on  the  ground  the 
next  morning  ? 

Witness.  No,  sir,  I  never  spoke  to  a  living 
soul  except  the  driver  till  I  got  to  Downingtown. 

Mr.  Lewis.  Downingtown  is  15  or  20  miles 
from  the  Gap  ? 

Witness.  It  is  two  miles  below  Gallagherville, 
towards  Philadelphia. 

Mr.  Lewis.  You  first  went  to  Downingtown, 
to  the  Gap,  still  proceeding  west.  Then  you 
came  back  to  Parkesburg  east.  Then  you  went 
to  Sadsbury  north.  Then  you  came  to  Gal- 
lagherville, still  nearer  Philadelphia.  Then  to 
Downingtown,  and  from  there  back  to  the  Gap. 

Witness.    Yes,  sir. 

Mr.  Lewis.  At  your  examination  before  the 
committing  magistrate  at  Lancaster,  did  you 
mention  it  ? 

Witness.    Yes,  sir. 

Mr.  Lewis.    Before  Squire  Pownell. 

Witness.  He  did  not  seem  to  take  much  in- 
terest in  it.    He  merely  put  his  name  to  it. 

Mr.  Lewis.  Did  you  mention  it  before  Com- 
missioner Ingraham  ? 

Witness.    I  think  I  did. 

Mr.  Lewis.    What  took  you  to  the  Gap  ? 

Witness.  When  I  went  away  from  the  Gap 
to  Penningtonville,  I  could  not  tell  where  Gor- 
such  and  his  party  was.  I  thought  I  would  go 
up  to  the  nearest  tavern.  I  went  up  and  inquired 
there,  and  found  he  had  not  been  there,  and  I 
went  to  the  next  tavern ;  and  we  there  stopped 
to  feed  our  horses  and  for  a  little  rest. 

Mr.  Lewis.  Did  you  meet  any  of  your  party 
at  the  Gap  ? 

Witness.  No,  sir. 

Mr.  Lewis.  Tell  me  of  whom  your  party  con- 
sisted ? 

Witness.  The  deceased  Mr.  Edward  Gorsuch, 
his  son,  Dr.  Pierce,  Mr.  Joshua,  and  Mr.  Nelson. 

Mr.  Lewis.  Were  those  all  who  were  with 
you  on  the  morning  of  the  11th  ? 

Witness.  Except  the  guide. 

Mr.  Lewis.  What  time  was  it  in  the  morning 
you  started  from  the  Gap  ? 

Witness.  At  the  time  the  rest  arrived  at  the 
Gap,  it  might  have  been  half-past  one  or  two,  as 
near  as  I  can  tell. 

Mr.  Lewis.  These  were  the  only  persons  con- 
stituting your  party  at  that  time  ? 

Witness.  At  that  time. 

Mr.  Lewis.  Had  you  no  others  until  the  time 
you  reached  the  ground  ? 


UNITED  STATES  V.  HANWAY. 


69 


Witness.  Except  the  guide. 

Mb.  Lewis.  Who  was  he  ? 

Witness.  I  could  not  tell  his  name.  He  had 
a  straw  hat  and  a  handkerchief  tied  around  it. 

Mr.  Lewis.  You  did  not  engage  him  ? 

Witness.  I  had  nothing  at  all  to  do  with  him 
at  all,  sir. 

Mr.  Lewis.  If  you  had  no  arrangements  to 
make,  no  persons  to  call  upon,  why  did  you  pre- 
ceed  the  rest  of  the  party  ? 

'  Witness.  After  I  came  to  Penningtonville,  I 
was  behind  my  time,  because  the  wagon  broke 
down.  I  got  there  fifteen  minutes  after  the  rest 
had  arrived.  I  was  hurt  very  much,  and  that 
kept  me  behind. 

Mr.  Lewis.  In  passing  ever  from  the  Gap  to  the 
house  of  Parker,  you  say  that  you  stopped  at  a 
house  were  you  supposed  one  of  the  slaves  were  ? 

Witness.  We  did  not  stop  at  the  house,  it  was 
some  distance  from  that  house. 

Mr.  Lewis.  How  far  were  you  at  the  time  you 
stopped  and  held  that  consultation  ? 

Witness.  I  should  judge  may  be  perhaps 
three,  four,  or  five  hundred  yards. 

Mr.  Lewis.  Where  was  it? 

Witness.  I  do  not  know,  I  could  not  tell  now. 

Mr.  Lewis.  Was  it  directly  on  the  road  to 
Parker's  house  ? 

Witness.  No,  sir.  Down  the  road  towards 
Penningtonville. 

Mr.  Lewis.  Why  was  it  you  did  not  arrest 
that  slave  ? 

Witness.  The  old  gentleman  wanted  me  to  go 
with  him  and  the  rest  of  the  party.  I  said  no, 
we  wanted  all  our  force  to  take  the  other  two. 
He  said  the  other  one  would  come  home  without 
any  trouble. 

Mr.  Lewis.  Is  that  the  reason  you  have  al- 
ways assigned  ? 

Witness.  He  said  he  thought  we  had  better 
take  the  other  two  and  he  would  come  back. 

Mr.  Lewis.  Is  that  the  only  reason  you  have 
ever  assigned?  Has  your  testimony  upon  that 
subject  always  been  uniform  ? 

Witness.  Just  exactly  what  I  have  said  before. 
Not  exactly  perhaps  the  same  language,  but  the 
same  meaning. 

Mr.  Lewis.  Did  you  not  say  it  was  because  he 
was  a  married  man  ? 

Witness.  He  said  he  was  a  married  man,  and 
he  thought  he  would  come  home  without  any 
trouble. 

Mr.  Lewis.  You  say  that  you  arrived  at  Par- 
ker's house  about  day  light  ? 
Witness.  Yes,  sir. 

Mr.  Lewis.  You  went  in  the  house  and  up  the 
stairs.    Is  there  a  door  there  ? 

Witness.  There  is  a  door  and  it  was  open. 

Mr.  Lewis.  Where  were  you  when  you  heard 
the  horns  ? 

Witness.  At  the  foot  of  the  stair-case. 

Mr.  Lewis.  You  heard  them  after  you  had 
got  in  ? 

Witness.  Yes,  sir. 

Mr.  Lewis.  How  long  were  you  in  the  house 
before  you  went  out  ? 

Witness.  I  cannot  say  exactly. 

Mr.  Lewis.  Was  Gorsuch  in  the  house  ? 


Witness.  He  was  there  nearly  all  the  time. 
Mr.  Lewis.  Who  went  out  of  the  house  first  ? 
Witness.  Mr.  Gorsuch. 

Mr.  Lewis.  How  long  was  it  before  he  went 
out? 

Witness.  Directly  after  the  gun  fired.  I  then 
took  out  my  revolver  and  fired  right  up. 

Mr.  Lewis.  Were  you  in  the  door  way  ? 

Witness.  I  was  just  outside. 

Mr.  Lewis.  He  was  by  your  side  ? 

Witness.  No,  sir.    Further  towards  the  lane. 

Mr.  Lewis.  How  far  from  you,  about  how  far. 

Witness.  I  cannot  tell  exactly,  it  might  have 
been  as  far  as  from  me  to  you,  and  it  might  be 
not  so  far.    Directly  opposite  the  window. 

Mr.  Lewis.  Did  you  read  the  warrants  there 
again  ? 

Witness.  I  read  them  twice,  inside  and  out- 
side the  house. 

Mr.  Lewis.  Did  you  go  into  the  house  again  ? 
Witness.  Yes,  sir. 

Mb.  Lewis.  What  took  place  after  you  went 
into  the  house  ? 

Witness.  After  I  had  read  the  warrants,  I 
got  a  piece  of  paper,  as  if  to  send  it  to  the 
Sheriff.  They  seemed  to  be  scared ;  I  went  out 
again. 

Mr.  Lewis.  It  was  after  you  read  the  warrant 
that  the  man  above  told  you  there  were  no  such 
men  there  ? 

Witness.  He  said  there  was  no  such  men  as 
Joshua  Hammond  and  another. 

Mr.  Lewis.  Did  you  see  any  other  men  in  the 
house  but  Parker.    Did  you  see  him  ? 

Witness.  I  saw  three  or  four  others.  They 
kept  dodging  and  peeping,  and  I  saw  several  at 
the  window,  and  they  kept  themselves  behind. 

Mr.  Lewis.  Do  you  know  who  they  were  you 
saw  ? 

Witness.  No  further  of  myself,  Mr.  Gorsuch 
recognized  Nelson  and  Josh.  I  had  never  seen 
them  before — they  had  been  pointed  out  by  Gor- 
such. 

Mr.  Lewis.  Did  not  the  men  show  their  faces 
out  of  the  window  to  satisfy  Mr.  Gorsuch  ? 

Witness.  No,  sir.  One  of  the  men  came  to 
the  window,  and  I  saw  several  others  that  were 
dodging. 

Mr.  Lewis.  How  long  were  you  at  the  house 
before  Mr.  Hanway  came  up  ? 

Witness.  We  might  have  been  up  there  some 
half  an  hour;  may  be  notso  long. 

Mr.  Lewis.  Were  you  not  there  more  than 
one  hour  ? 

Witness.    I  cannot  tell. 

Mr.  Lewis.  Were  you  not  there  nearly  two 
hours  ? 

Witness.    No,  sir :  not  one  hour,  I  think. 
Mr.  Lewis.    Did  you  see  Hanway  coming? 
Witness.    No,  sir. 

Mr.  Lewis.  In  your  judgment,  what  time 
elapsed  between  the  arrival  of  Hanway  and  Mr. 
Lewis  upon  the  ground  ? 

Witness.  It  might  have  been  some  eleven  min- 
utes ;  may  be  five  minutes  ;  I  cannot  tell  exactly. 
It  might  have  been  a  little  longer,  or  not  so 
long.  I  had  been  talking  to  Mr.  Hanway  some- 
time before  Mr.  Lewis  came  up. 


70 


TREASON  CASES. 


Mr.  Lewis.  Did  you  see  Hanway  come  up,  or 
was  lie  but  of  the  road  when  you  first  saw  him  ? 

Witness.  He  was  sitting  on  his  horse  up  at 
the  bars.  That  was  the  first  sight  I  had  of  Han- 
way. 

Mr.  Lewis.    Did  Lewis  come  up  to  the  bars  ? 

Witness.  Pie  did  not  come  to  the  bars.  He 
might  have  been  the  length  of  the  table  off.  He 
walked  around  about  and  talked. 

Mr.  Lewis.  You  have  said  here,  that  you 
saw  upon  the  ground  John  Morgan.  Did  you  see 
him  in  the  first  party  of  ten  or  fifteen  that  were 
upon  the  ground  ? 

Witness.  Yes,  sir;  there  might  have  been 
twenty,  I  guess. 

Mr.  Lewis.    Where  did  you  see  him  ? 

Witness.  He  was  with  the  first  party,  and  he 
had  a  kind  of  scythe  in  his  hand.  They  call  it 
a  corn  cutter. 

Ms.  Lewis.  Was  he  the  one  you  saw  stand- 
ing in  the  long  lane  ? 

Witness.    Yes,  sir. 

Mr.  Lewis.  Did  you  see  Henry  Sims  amongst 
that  party  ? 

Witness.  I  saw  the  man  they  call  Henry 
Sims,  and  he  had  a  gun. 

Mr.  Lewis.  Was  George  Williams  among  that 
party? 

Witness.  I  do  not  know  whether  he  was  or 
not  by  his  name. 

Mr.  Lewis.    Had  he  anything  there  ? 

Witness.  I  don't  know  exactly  whether  he 
had  a  gun  or  not. 

Mr.  Stevens.  We  shall  be  able  to  cross-ex- 
amine much  faster,  after  these  men  have  come 
into  Court. 

Judge  G-rier.  You  had  better  send  a  habeas 
corpus  ad  testificandum  for  them. 

Mr.  Stevens.  For  all  the  persons  who  are 
in  prison  under  the  charge  of  treason  ? 

Mr.  Ashmead.  Don't  your  honors  think  they 
all  had  better  be  sent  up  ? 

Mr.  Stevens.  We  do  not  dispute  but  that 
some  of  them  were  there. 

Mr.  Ashmead.    Mr.  Scarlet  was  there. 

Mr.  Stevens.  Will  the  gentlemen  let  us  do 
what  we  think  better  on  our  side,  and  they  can 
do  what  they  think  better  on  the  other  side. 

Mr.  Ashmead.  May  it  please  your  honors. 
I  think  a  warrant  should  be  sent  for  them  all, 
so  that  the  residue  may  come  up  at  the  same 
time. 

Mr.  Stevens^  We  will  furnish  the  names  of 
those  we  desire  to  see  in  Court. 

Judge  Grier.  The  Clerk  can  issue  a  writ 
of  habeas  corpus  ad  testificandum,  returnable 
to-morrow  morning,  and  deliver  it  to  the  Mar- 
shal. 

Judge  Kane.  I  understand  the  counsel  for 
the  United  States  have  issued  warrants  for  all 
who  ">  are  not  named  by  the  counsel  for  the 
defence. 

Judge  Grier.  I  have  found  the  tipstaves 
sometimes  break  the  letter  of '  their  oaths, 
before  the  ink  is  dry  that  wrote  them.  It 
should  not  be  so.  I  have  altered  the  oath  to 
be  administered  in  such  cases,  so  that  the 
letter  may  conform  to  the  spirit.     I  cannot 


permit  oaths  to  be  administered,  the  letter  of 
which  the  officer  is  compelled  to  break  im- 
mediately. 

Mr.  Ashmead.    We  are  agreed  to  it 
Mr.  G.  L.  Ashmead.    It  is  well  to  modify  it, 
on  account  of  a  juror  becoming  sick,  and  ren- 
dering it  necessary  to  employ  the  services  of  a 
physician. 

Judge  Kane.  Gentlemen  of  the  Jury,  the 
Marshal  has  asked  us  if  you  can  communicate 
with  your  families  by  letter.  •  There  is  no  diffi- 
culty about  your  addressing  them,  but  all  com- 
munications that  come  to  you  must  be  examined 
by  the  Marshal,  and  if  there  is  anything  relative 
to  the  cause  in  hand  contained  in  them,  they 
must  be  submitted  to  the  Court.  Letters  from 
you  of  course  are  not  to  be  inspected  under  any 
circumstances.  Letters  to  you  must  pass  under 
the  eye  of  the  Court. 

Jno.  Jenkins  and  W.  H.  Miller,  were  then 
specially  sworn  according  to  the  oath  provided  by 
the  Court,  viz.  : 

"  You  and  each  of  you  do  swear,  that  you  will 
keep  this  jury  in  some  private  and  convenient 
place,  and  remain  there  in  attendance  upon  them, 
that  you  will  suffer  no  one  to  speak  to  them,  nor 
speak  to  them  yourselves,  upon  any  matter  touch- 
ing the  cause  now  upon  trial,  unless  it  be  to  ask 
them  if  they  have  agreed  upon  their  verdict. 
So  help  you  God." 

The  jury  retired  under  the  charge  of  the 
officers. 

The  Court  adjourned  until  to-morrow  at  10 
A.M. 


SATURDAY,  NOVEMBER  29,  1851. 
The  Court  opened  at  Ten  o'clock. 

Present  Judges  Grier  and  Kane. 

The  empannelled  jurors  were  called  and  an- 
swered to  their  names. 

Mr.  Read.  Will  your  honors  allow  me  to 
mention  a  matter  that  is  personal  to  the  prison- 
er ?  Your  honors  will  perceive  that  his  health  is 
not  strong.  It  has  always  been  delicate ;  but  the 
confinement  within  the  Moyamensing  prison,  al- 
though conducted  with  great  liberality,  being  in 
a  single  cell  with  Mr.  Lewis,  has  brought  on 
pains  in  his  breast  and  side;  and  his  wife,  I 
think,  has  represented  to  one  of  your  honors, 
that  the  condition  of  his  health  is  such  as  to  do- 
mand,  if  possible,  some  place  where  he  can  have 
a  freer  air,  and  where  he  would  not  be  exposed 
to  the  same  confinement  that  takes  place  in  a 
small  room. 

I  mention  this  because  I  know  your  honors 
will  in  your  liberality  deal  with  him  in  the  best 
way  the  law  may  allow  you. 
-  Judge  Grier.  As  a  general  rule,  where  the 
prisoner  is  uncondemned  and  in  good  health, 
the  same  sort  of  justice,  if  I  may  so  call  it,  or 
treatment,  is  measured  out  to  all,  high,  low,  rich, 
and  poor,  and  the  marshal  would  be  bound  to 
keep  the  prisoner  in  the  cell  as  other  prisoners ; 
but  where  it  is  a  question  of  his  health,  especial- 
ly before  trial  and  before  conviction,  we  have  no 


UNITED  STATES  V.  HAXWAY. 


n 


right,  if  lie  cau  be  safely  kept  otherwise,  to  keep 
him  in  a  manner  injurious  to  his  health ;  and  of 
course,  the  marshal,  if  he  can  give  this  prisoner 
better  lodging,  feeling  certain  that  he  can  keep 
him  safely,  we  have  no  objection  to  any  indul- 
gence of  that  nature,  and  direct  the  marshal  to 
grant  it  to  him.  Wishing  it  to  be  understood, 
however,  that  it  is  done  not  as  a  favor  to  person, 
or  a  distinction  between  the  prisoners  in  this 
case,  but  it  is  only  on  account  of  his  health,  that 
the  confinement  in  which  he  now  is,  is  injurious 
to  it. 

Mr.  Read.  There  is  another  matter,  of  which 
I  would  like  to  speak  to  the  Court.  It  is  our 
object  on  both  sides  to  shorten  this  case  as  much 
as  possible,  and  to  relieve  your  honors  and  the 
jury  from  the  burden  of  it.  The  matter  which  I 
wish  to  submit  to  the  Court,  I  mentioned  to  the 
District  Attorney,  but  to  which  I  understand  no 
agreement  comes  on  his  part. 

We  have  now  proceeded  so  far  as  to  come  to  a 
particular  part  of  the  cross-examination  of  Mr. 
Kline.  We  have  summoned  a  large  body  of 
witnesses,  and  are  summoning  more,  to  one  par- 
ticular point — which  if  it  had  been  disclosed  upon 
the  part  of  the  evidence  of  the  United  States, 
we  always  presumed  it  would  be  legal  to  bring 
evidence  to  contradict  it — or  to  show  that  the 
state  of  facts  was  different  from  what  was  repre- 
sented by  the  United  States.  The  United  States 
have  not  examined  on  that  question,  and  we  have 
been  commencing  a  cross-examination  upon  the 
same  point,  to  which  the  same  witnesses  would 
be  rebutting.  It  was  stated  yesterday  by  the 
District  Attorney,  that  he  considered  these  ques- 
tions irrelevant — not  in  the  point  of  view  that 
they  could  not  be  put — but  that  we  would  be 
bound  by  the  answer,  and  could  not  rebut  it  by 
testimony,  as  I  presumed  we  could,  if  introduced 
by  the  United  States.  Our  object  in  mentioning 
it  is  to  avoid  the  necessity  of  bringing  up  this 
question  at  another  period  of  the  case,  when  we 
should  be  obliged  to  be  keeping  sixty  or  seventy 
witnesses  here  at  a  large  expense,  and  which 
could  be  disposed  of  now.  Our  object  was  to 
submit,  before  we  went  into  this  cross-examina- 
tion— for  if  decided  against  us  it  stops  the  cross- 
examination  on  that  point,  and  shortens  the  cause, 
and  if  decided  in  our  favor  we  should  go  on  with 
the  cross-examination ;  and  I  propose  to  submit 
to  the  Court,  without  argument,  the  simple 
question,  whether  if  we  cross-examine  upon  the 
point  which  we  were  at  yesterday  as  to  the 
identification  of  certain  persons,  we  should  be 
able  afterwards  to  produce  witnesses  to  show 
that  these  persons  were  not  there  ;  or  in  fact  to 
contradict  directly  what  the  witness  says.  Our 
object  is  to  save  time,  a  large  expense,  and  to 
facilitate  the  business  of  the  Court. 

What  I  meant  by  the  prosecution  not  examin- 
ing to  it,  is  that  they  have  examined  without  the 
names,  and  without  the  identification  of  parti- 
cular persons. 

Mr.  Stevens.  And  I  would  add  to  that,  that 
we  intend  to  confine  our  cross-examination  to  the 
persons  spoken  of  by  Mr.  Kline  as  being  present 
without  Ms  naming  them.  We  ask  him  to  name 
those  he  spoke  of  as  being  present,  and  we  want 


to  contradict  him  by  proving  that  they  were  not 
present. 

Mr.  Cooper.  We  suppose  the  suggestions 
that  have  just  been  made  are  out  of  place — this 
matter  will  come  up  hereafter,  and  the  gentlemen 
ought  to  pursue  now  such  a  course  as  they  deem 
proper.  If  they  propose  questions  now  to  the 
witness  for  the  purpose  of  contradicting  him 
hereafter,  it  will  be  asking  rather  too  much  of 
the  United  States  to  agree  that  they  should  do 
so.  The  United  States  cannot  do  so.  When  the 
question  comes  up  as  to  their  right  to  contradict 
the  witness  we  shall  be  prepared  to  discuss  the 
question — but  until  then  we  dont  agree  to  any- 
thing of  this  kind. 

Mr.  Read.  We  dont  ask  them  to  agree — we 
simply  submit  the  question.  If  the  Court  decide 
against  us  it  would  stop  our  cross-examination 
on  that  point — if  the  Court  decide  in  our  favor, 
we  would  go  on — and  we  did  not  want  to  incur 
the  necessity  of  keeping  a  large  body  of  witnesses 
in  attendance  to  prove  a  fact;  when  if  the  Court 
decide  against  us  we  should  not  keep  the  witnesses 
or  conduct  the  cross-examination. 

Judge  (trier.  In  a  case  of  this  description, 
the  Court  do  not  feel  at  liberty  to  go  on  and 
decide  beforehand  and  without  argument  any 
question  that  may  affect  the  rights  of  this  de- 
fendant ;  it  would  be  premature.  But  at  the 
same  time,  we  think  it  is  due  to  you,  after  the 
manner  in  which  you  have  presented  it,  to  say 
what  our  view  would  be  at  present.  It  has  not 
been  endeavored  to  prove  the  names,  or  to  iden- 
tify the  other  hundred,  said  to  be  there,  armed 
or  in  the  commission  of  the  act.  It  is  no  part 
of  their  case  or  evidence;  it  is  a  matter  col- 
lateral to  the  question,  whether  it  was  A.  B.  or 
C.  D.  or  E.  F. ;  or  any  other  letters  of  the  al- 
phabet, that  were  present  on  that  occasion. 
Then  it  would  appear  to  come .  under  the  rule, 
when  you  go  to  a  matter  collateral  to  the  issue, 
you  make  him  your  own  witness.;  and  you  can- 
not do  it  for  the  purpose  of  bringing  other  per- 
sons to  contradict  him.  It  may  be  raising  here 
forty  or  fifty  collateral  issues,  and  after  all  it 
might  not  have  very  great  weight  as  to  the  tes- 
timony of  a  man  in  a  crowd,  and  in  a  great 
contest.  I  have  often  heard  the  best  of  witnesses 
make  the  greatest  mistakes  as  to  the  identity ; 
it  never  affects  their  testimony  at  all  on  other 
grounds.  It  may  be  possible  that  matters  may 
turn  out ;  that  a  man  may  mention  matters  in 
the  examination-in-chief,  and  you  may  bring  it 
out  more  broadly  in  cross-examination,  and  you 
could  bring  other  witnesses  to  show  that  he 
falsified. 

Judge  Kane.  I  entirely  concur  with  Judge 
Grier.  My  impressions  are,  that  the  direct  and 
most  pertinent  answers  to  the  proposed  ques- 
tions would  introduce  collateral  subjects.  At 
the  same  time,  I  can  well  imagine,  that  portions 
of  the  answers  to  such  questions,  might  be 
without  the  rule  which  excludes  collateral  mat- 
ters ;  where  the  character  of  the  examination-in- 
chief  has  been  such,  that  perhaps  answers  that 
might  be  drawn  out  by  the  proposed  cross-ex- 
amination, might  be  pertinent  to  the  issue.  I 
make  the  remark,  merely  as  excluding  the  pre- 


72 


TREASON  CASES. 


judication  upon  one  of  the  questions  that  may- 
hereafter  arise. 

Mr.  Stevens.  We  troubled  your  honors  to 
have  these  prisoners  brought  into  Court,  expect- 
ing it  would  be  legal  for  us  to  ask  the  witness, 
whether  one  or  all  of  these  were  present,  and  to 
disprove  the  fact,  he  would  prove  with  regard  to 
them.  We  are  disposed  of  course,  to  yield  to 
the  suggestion  of  the  Court,  though  not  formally 
made.  We  dont  want  to  occupy  the  Court  so 
long  as  we  would  be  in  examining  their  wit- 
nesses, and  then  have  our  contradiction  excluded. 
We  therefore  wish,  that  the  prisoners  may  be 
remanded. 

Mr.  Ashmead.  Then  the  persons  we  also 
ordered  to  be  brought  up  on  the  part  of  the 
United  States — the  white  men — may  go  down 
along  with  the  others,  as  the  other  side  do  not 
intend  to  make  inquiry  as  to  the  colored  people. 
I  have  no  questions  to  put  as  respects  the  others. 

Judge  Grier.  We  are  not  desirous  of  trying 
thirty-eight  issues  in  one. 

The  prisoners  are  remanded. 

Mr.  Stevens.  I  find  there  is  an  error  in  the 
printed  testimony  of  yesterday.  I  understand 
that  we  all  agree  as  to  that.  It  is  on  page  99. 
The  witness  says  1 '  after  he  resisted  I  told  him 
what  the  Act  of  Congress  was."  The  language 
used  by  the  witness  was — "After  he  refused  I 
told  him,"  &c. 

Judge  Kane.  I  believe  the  witness  meant  to 
say  refused,  but  my  ear  was  misled  as  the  Phono- 
grapliers  was,  or  he  said  resisted.  I  think  he 
said  resisted,  but  the  connection  satisfies  me  he 
meant  refused. 

Mr.  Ashmead.  There  may  be  other  correc- 
tions to  make,  and  we  ask  that  your  honors  will 
allow  us  at  any  time  to  move  the  Court  to  make 
the  corrections.  On  page  97  there  is  a  mistake, 
which  I  ask  at  this  time  to  be  corrected.  At 
the  middle  of  the  page,  the  question  is  put  down, 
"  You  mean  to  say  that  Mr.  Hanway  was  40  or 
50  yards  nearer  than  you  were  ?"  It  should  be, 
"40  or  50  yards  nearer  the  creek  than  you  were." 

Judge  Grier.  There  is  a  mistake  of  very  little 
importance  on  page  98 — the  question  intended 
to  be  asked  by  me,  was  "  on  either  side;"  it  is 
put  down  "on  the  other  side."* 

Henry  H.  Kline  resumed. 

Cross-examined  by  Mr.  Stevens. 

Question.  You  said  in  your  examination  that 
you  did  not  see  or  know  that  old  Mr.  Gorsuch 
was  killed,  till  after  you  had  left  and  gone  away  ? 

Answer.  Yes,  sir. 

Question.  Have  you  told  any  person  that  you 
saw  a  man  shoot  old  Mr.  Gorsuch  ? 
Answer.  No,  sir. 

Question.  Have  you  told  any  person  that  you 
saw  Parker  shoot  old  Mr.  Gorsuch  ? 
Answer.  No,  sir. 

Question.  Did  you  tell  Jacob  Whitson  either 
of  these  things  I  have  asked  you  ? 

Answer.  No,  sir,  and  nobody  else. 

Question.  Did  you  tell  any  person  that  you 
heard  Mr.  Hanway  give  particular  orders  to  the 
negroes  ? 

*  These  errors  occurred  in  the  daily  report  of  the  proceed- 
ings to  the  Court^-they  are  corrected  in  this  edition. 


Answer.  No,  sir. 

Question.  Did  you  tell  Samuel  H.  Laughlin 
that  you  heard  him  tell  the  negroes  to  shoot? 

Answer.  No,  sir,  and  no  person  else.  I  dont 
know  such  a  man. 

Question.  Did  you  say  to  Mr.  Laughlin,  that 
you  were  in  tne  woods  when  the  firing  in  the 
lane  took  place  ? 

Answer.  No,  sir,  nor  no  person  else. 

Question.  Nor  to  Lewis  Cooper  ? 

Answer.  No,  sir. 

Question.  You  said  so  to  no  person,  I  un- 
derstand ? 

Answer.  Yes,  sir. 

Question.  What  time  in  the  morning  was  it, 
when  the  firing  in  the  lane,  at  which  these  peo- 
ple were  killed  and  wounded,  took  place? 

Answer.  Between  the  hours  of  five  and  seven, 
I  cant  tell  exactly ;  as  near  as  I  can  tell. 

Question.  Cant  you  tell  a  little  nearer? 

Answer.  No,  sir. 

Question.  You  were  perfectly  cool  and  knew 
what  you  were  about :  cant  you  recollect  whether 
it  was  six,  or  half-past  six  ? 

Answer.  I  cant  tell,  I  dont  know  the  exact 
time. 

Question.  Cant  you  tell  from  the  rising  of  the 

sun  ? 

Answer.  No,  sir,  I  dont  know  what  time  the 
sun  rose. 

Question.  Did  you  see  it  rise  that  morning  ? 

Answer.  I  did  not  exactly  see  it  rise,  but  I 
knew  when  it  was  up. 

Question.  Was  it  before  or  after  you  read  the 
warrants  in  the  house  ? 

Answer.  The  sun  was  not  up  when  I  read  the 
warrants  in  the  house  ? 

Question.  It  is  very  important  for  us  to  know ; 
cant  you  tell  how  long  it  was  from  the  time  you 
chased  the  negroes  into  the  house  till  this  firing 
commenced  ? 

Answer.  I  cant  tell  exactly,  it  may  be  three 
quarters  of  an  hour,  it  may  be  an  hour. 

Question.  That  is  the  nearest  you  can  get  to 
it? 

Answer.  It  might  not  have  been  so  long,  and 
it  might  have  been  longer;  I  cant  recollect. 

Mr.  Stevens.  Did  you  tell  Mr.  Cooper,  that 
if  your  men  had  obeyed  you  there  would  have 
been  no  damage  done  ? 

Witness.  Not  all,  sir.  Mr.  Cooper,  1  had  no 
conversation  with  him. 

Mr.  Stevens.  Mr.  Lewis  Cooper  then  took 
a  walk  with  you  and  you  wanted  to  have  a  con- 
versation with  him  ? 

Witness.  No,  sir,  I  would  not  have  any  con- 
versation with  him. 

Mr.  Stevens.    How  did  you  laiow  him  ? 

Witness.    He  was  pointed  out  to  me. 

Mr.  Stevens.  Then  you  had  no  conversation 
with  Lewis  Cooper  ? 

Witness.    Not  a  word,  I  am  positive. 

Mr.  Stevens.  Was  it  on  the  day  of  the  riot 
you  saw  him  ? 

Witness.  I  saw  him  on  the  next  morning;  on 
the  12th. 

Mr.  Stevens.  That  is  the  only  day  you  saw 
him? 


UNITED  STATES 


V.  HANWAY. 


Witness.  The  only  time  I  saw  him,  except  at 
Court  and  at  Lancaster. 

Mr.  Stevens.  You  did  not  tell  him,  that  you 
called  three  times  to  your  men  to  come  away,  and 
they  would  not  ohey  you,  and  then  you  left  ? 

Witness.  I  had  no  conversation  with  him 
from  first  to  last,  neither  good  or  bad. 

Mb.  Stevens.  Was  he  present  when  you  had 
a  conversation  with  anybody  else  ? 

Witness.  Not  that  I  know  of,  for  I  was  care- 
ful what  I  said. 

Mr.  Stevens.  Did  1  understand  you,  you  did 
not  know  Wilson  ? 

Witness.    Not  by  name,  sir. 

Mr.  Stevens.  Do  you  remember  going  to  a 
man's  house  to  hunt  for  Parker  ? 

Witness.    I  do. 

Mr.  Stevens.  Did  he  hear  the  conversation 
of  which  you  speak  ? 

Witness.    I  had  no  conversation  at  all,  sir. 

Mr.  Stevens-  You  have  spoken  of  arms  by 
those  negroes,  ti&d  they  any  arms? 

Witness.  Xot  that  that  I  know  of,  sir.  They 
might  have  had  something  in  their  pockets,  I  did 
not  see  anything  in  their  hands. 

Mr.  Stevens.  I  am  asking  you  what  you 
saw,  not  what  might  have  been.  What  arms  had 
your  party  ? 

Witness.  I  think  the  sis  of  us  had  four  re- 
volvers. The  old  gentleman  had  no  arms,  and 
one  of  the  others. 

Mr.  Stevens.  Who  was  the  guide  ? 

Witness.  It  is  impossible  for  me  to  tell  sir,  I 
don't  know. 

Mr.  Stevens.  Black  or  white  man. 

Witness.  White  man  I  took  him  to  be. 

Mr.  Stevens.  Why  couldn't  you  tell  the  color  ? 

Witness.  He  was  disguised.  I  took  him  to  be 
white. 

Mr.  Stevens.  Were  there  but  four  armed  '? 

Witness.  I  think  so  to  the  best  of  my  knowl- 
edge.   I  had  a  revolver. 

Mr.  Stevens.  After  the  battle  begun  did  you 
discharge  your  revolver  ? 

Witness.  No,  sir. 

Mr.  Stevens.  You  were  not  near  enough  to 
do  execution  then  ? 

Witness.  I  was  near  the  corner  of  the  end  of 
the  lane,  sir. 

Mr.  Read.  What  time  was  it  you  left  the  Gap, 
coming  over  to  Parker's  house  ? 

Witness.  As  soon  as  the  cars  stopped  at  the 
Gap,  we  came  down,  between  12  and  2. 

Mr.  Bead.  What  time  did  you  arrive  at  the 
little  Creek  ? 

Witness.  Day  break. 

Mr.  G.  L.  Ashmead.  One  single  question. 
Sir,  you  have  said  that  you  were  careful  of  your 
conversation  with  Mr.  Cooper. 

Witness.    I  was,  sir. 

Mr.  G.  L.  Ashmead.    Why  were  you  careful  ? 
Mr.  Stevens.    Dont  state  the  motives  of  the 
witness. 

J udge  Grier.    I  do  not  see  any  good  in  asking 
him  to  repeat  it,  that  I  know  of, 

Mr.  G.  L.  Ashmead.  If  your  Honor  please, 
the  witness  was  asked  by  the  other  side,  whether 
he  had  certain  conversations  with  Mr.  Cooper.  1 1 

10 


i  The  witness  said  he  was  careful.  He  did  not 
j  state  why  he  was  careful,  other  than  that  he  was 
'  cautioned  against  him.  I  now  proceed  $6  ask  him 
!  further  why  it  was  he  was  careful  of  conversing 
with  Mr.  Cooper. 

Judge  Grier.  By  your  own  statement,  he  says 
that  he  was  cautioned  against  him. 

Mr.  G.  L.  Ashmead.    I  am  perfectly  aware 
I  that  he  gave  that  answer.     I  want  to  know 
whether  any  reason  was  given  to  him  for  that 
caution. 

Judge  Grier.  I  do  not  think  it  has  anythiug 
to  do  with  the  case  ;  such  a  question. 

Mr.  Brent.    You  say  you  never  saw  him 
except  at  Christiana  ? 
Witness.    Yes,  sir. 
Mr.  Cehl    When  was  it? 
Witness.    On  the  clay  after  the  murder. 
Mr.  Brent.    Were  you  there,  when  the  coro- 
ner's inquest  was  held  ? 
Witness.    Yes.  sir. 

Mr.  Brent.  Was  he  or  was  he  not,  one  of 
that  coroner's  jury  ? 

Witness.    Yes,  sir.    He  was,  sir. 
Mr.  Brent.    You  saw  him  at  that  time,  sir  ? 
Witness.    Yes,  sir. 

Judge  Kane.  Who  is  this.  Is  it  Cooper  ? 
Mr.  G.  L.  Ashmead.  Yes,  sir. 
Mr.  Brent.  Yesterday,  Mr.  Stevens  under- 
stood you  to  say,  that,  the  reason  why  Mr.  Gor- 
such  saw  the  negro,  was  because  he  ran  by  you 
in  the  lane.  Did  you  mean  to  convey  that  idea 
to  the  Court  and  jury  ? 

Witness.  Mr.  Gorsuch  had  crossed  the  fence 
at  the  house,  and  got  to  the  bars  before  I  got  up. 

Mr.  Brent.  He  did  not  pass  you  in  the  lane 
then? 

Witness.  No,  sir.  He  went  cat-a-cornered 
over  to  the  house. 

Me.  R.M.Lee.  You  said  you  saw  a  person  upon 
a  horse  that  was  sweating.    Was  that  at  the 
scene  of  action? 
Witness.    No.  sir. 
Mr.  R.  M.  Lee.    Where  was  it? 
Witness.     After  I  left  the  colored  man.  I 
met  Mr.  Scarlett  on  horseback  coming  from  the 
scene  of  action  and  his  horse  was  very  warm. 

Mr.  R.  M.  Lee.  He  was  not  at  the  scene  of 
action  ? 

Witness.    Xot  that  I  saw,  sir. 
Mr.  G.  L.  Ashmead.    That  is  all,  sir. 
Dr.  Thomas  Pierce  is  sworn,  and  testifies  as  - 
follows. 

Mr.  G.  L.  Ashmead.    Are  you  a  resident  of 
Delaware  county.  Maryland  ? 
Witness.    I  am. 

Mr.  G.  L.  Ashmead.    Did  you  reside  near  the 
late  Mr.  Edward  Gorsuch  ? 
Witness.    I  did,  sir.    I  do. 
Mr.  G.  L.  Ashmead.  Were  vou  related  to  him, 


sir ; 

Witness. 
Mr.  G.  L 
Witness. 
Mr.  G.  L 


I  did,  sir. 
Ashmead. 
Nephew. 
Ashmead. 


I  was. 

What  relation  ? 


Did  you  accompany  Mr. 
Edward  Gorsuch,  and  Mr.  Henry  Kliue,  and 
other  gentlemen  to  Christiana,  in  the  month  of 
September,  last? 


71 


TREASON  CASES. 


Witness.  I  did,  sir. 

Mr.  G.  L.  Ashmead.  Did  you  arrive  in  Chris- 
tiana on  the  morning  of  the  11th  of  September, 
last? 

Witness.  I  did  sir.  I  think  it  was  on  that 
morning,  sir,  the  11th. 

Mr.  G.  L.  Ashmead.  On  your  way  up  there, 
sir,  did  you  hear  instruments  of  any  kind,  and  if 
so,  state  what? 

Judge  Grier.  Had  he  not  better  go  on  and 
state  clearly  all  that  transpired? 

Witness.  Have  you  reference  to  our  passing 
over  to  Parker's  ? 

Mr.  G.  L.  Ashmead.  As  you  went  up  the  road 
to  Christiana? 

Witness.  As  we  passed  over  to  Parker's  we 
heard  a  bugle  blown. 

Mr.  G.  L.  Ashmeai>.  In  what  direction  was 
that,  sir  ? 

Witness.  It  was  to  our  right  as  we  passed 
over.    I  think  to  the  west. 

Mr.  G.  L.  Ashmead.  Did  it  appear  near,  or 
at  a  distance  ? 

Witness.  Not  very  remote,  sir.  I  should 
suppose  about  a  quarter  of  a  mile  by  the  sound. 

Mr.  G.  L.  Ashmead.  About  what  time  did 
you  arrive  at  Parker's  house,  on  the  eleventh  ? 

Witness.    About  the  first  dawn  of  day. 

Mr.  G.  L.  Ashmead.  Will  you  be  good  enough 
to  go  on,  and  state  in  your  own  way,  and  give  a 
connected  statement  of  what  you  saw,  heard, 
and  did,  on  that  occasion  ? 

Witness.  We  passed  along  the  long  lane,  and 
before  reaching  the  short  lane,  a  black  person 
was  discovered,  and  chased  to  the  house.  Mr. 
Kline  (the  marshal,)  being  front.  My  uncle,  I 
thought,  come  next ;  and  the  rest  were  behind. 
Dickerson  Gorsuch  and  myself  were  the  two  in 
the  rear.  We  jumped  over  the  fence  and  passed 
over  the  orchard,  and  we  nearly  arrived  at  the 
house  as  soon  as  the  foremost  of  them.  They 
however,  had  passed  in ;  on  approaching  the 
house,  I  received  a  severe  blow  from  a  missile 
thrown  from  a  window  above,  over  my  right  eye, 
the  prominence  of  which  you  may  perceive  now  ; 
during  that  time,  the  Marshal  and  my  uncle 
were  in  the  house,  trying  to  effect  an  entrance 
up  stairs,  but  were  opposed  by  the  blacks.  This 
continued  for  some  time  in  the  house,  before  the 
warrants  were  read.  After  they  found  they 
could  not  effect  an  entrance,  the  warrants  were 
read,  and  the  proprietor  of  the  house  was  called 
for  ;  we  stating  that  there  were  two  persons  in 
the  house  that  we  came  to  arrest.  Fugitives 
from  servitude,  belonging  to  Edward  Gorsuch. 
The  warrants  then  were  taken  out  and  read,  for 
Nelson  and  Josh,  by  the  Marshal.  At  which 
time  he  stated  he  was  the  deputy  Marshal  of  the 
United  States,  and  came  to  arrest  them.  After 
a  short  period  my  ancle  came  out,  and  I  think 
that  the  Marshal  followed  him,  and  the  warrants 
were  read  outside  of  the  house  to  the  proprietor, 
as  he  represented  himself  to  be,  of  the  house. 
The  window  was  raised,  and  he  was  looking  out 
conversing  with  us.  My  uncle  told  the  Marshal 
that  they  came  there  to  arrest  them,  and  he  was 
determined  to  do  so,  and  he  would  not  go  home 
without  them.    Evincing  this  determination;  the 


Marshal  then  shamm'd  to  send  an  order  for  so  many 
men  to  come  and  assist  him,  and  he  went  up  to 
one  of  our  men,  and  dispatched  it  to  Penington- 
ville.  I  think  however,  at  that  time,  or  about 
that  time,  they  asked  for  time  to  consider. 

Judge  Grier.  The  persons  up  stairs  ? 

Witness.  Yes.  sir.  The  persons  up-stairs. 
About  this  time,  however,  Mr.  Hanway,  the  pri- 
soner, rode  up  to  the  bars  on,  I  think,  a  sorrel 
horse.  The  Marshal  then  went  out  to  him  and 
stated  distinctly,  (I  heard  him  say,)  "  he  was  a 
Marshal  of  the  United  States,  and  came  with 
proper  authority  to  arrest  two  slaves  belonging 
to  Edward  Gorsuch,"  and  he  requested  him  or 
asked  him  to  assist  in  the  arrest,  which  he 
positively  denied. 

Mr.  Cooper.  What  did  he  say. 

Witness.  Well,  I  heard  him  positively  deny. 
The  Marshal  presented  him  papers  and  he  read 
them  and  handed  them  back  to  another  person 
that  was  standing  by  on  the  ground,  with  his 
back  towards  me.  He  also  read  them,  at  least, 
he  had  them  in  his  hand,  whether  he  read  them 
or  not  I  cannot  say.  I  advanced  towards  the 
gentlemen  at  the  bars  and  towards  the  Marshal, 
and  I  heard  the  person  on  the  horse  reply  to 
him,  "You  need  not  come  here  to  make  an 
arrest." 

These  were  the  words  as  near  as  I  can  recol- 
lect. I  think  it  was  in  this  way  :  You  had  bet- 
ter go  home,  you  need  not  come  here  to  make 
arrests,  for  you  cannot  do  it.  He  also  continued, 
and  said  something  about  blood.  I  could  not 
distinctly  understand  the  latter  part.  While  we 
were  standing  there,  there  was  a  number  of 
blacks,  armed,  came,  both  on  foot  and  horseback. 
After  conversing  with  them  for  some  time,  he  re- 
marked, I  heard  him  distinctly,  to  the  young  man, 
you  may  retire  now,  as  there  was  no  possibility  of 
making  an  arrest.  At  the  conversation  (I  might 
have  finished)  I  heard  the  marshal  tell  the  prisoner, 
that  he  was  Marshal  of  the  United  States,  and 
that  he  came  with  authority  to  arrest.  When 
he  refused,  he  told  him  that  he  held  him  respon- 
sible for  the  slaves ;  the  whole  party.  There 
were  two  talking  at  that  time,  Lewis  and  Hanway, 
when  the  marshal  said  he  would  hold  them  re- 
sponsible for  the  slaves. 

The  Marshal  remarked  to  our  party  that  we 
had  better  retire,  as  there  was  no  possibility  of 
making  an  arrest.  I  went  at  that  time  for  my 
uncle  and  I  stated  to  him  what  the  Mashal  had 
said.  They  were  coming  from  every  quarter, 
and  as  far  as  I  believe,  armed  with  clubs  and 
pistols,  corn-cutters,  guns  or  something  of  the 
kind.  Most  every  one  I  saw  had  something  to 
defend  himself  with.  After  stating  this  to  my 
uncle,  we  passed  down  towards  the  bars,  and  I 
thought  they  were  about  to  retire.  But  I  turned 
around  after  having  gone  a  few  paces  and  I  ob- 
served he  was  retiring  again  towards  the  house. 
I  saw  the  imminent  danger  to  which  he  was  ex- 
posed, and  I  then  went  a  few  paces  further  to- 
wards the  bars,  to  call  the  marshal :  as  I  thought 
it  absolutely  necessary  to  have  our  party  to- 
gether, so  that  we  might  defend  ourselves  the 
best  way  we  could. 

After  reaching  the  bars,  or  not  reaching  the 


UNITED  STATES  V.  HAWAT, 


75 


bars.  (I  never  did,)  Terr  nearly,  -vrithin  some  six  i 
or  eight  steps,  I  called  "for  the  Marshal,  (but  in 
a  low  tone  as  I  thought  the  blacks  might  know  j 
him.)    I  then  looked  up  and  down  the  lane,  and  j 
I  could  see  nothing  of  him.    At  this  juncture  of  ] 
time,  the  blacks  from  the  house  had  passed  j 
down  the  lane  between  my  uncle  and  myself,  j 
and  them  from  the  sides  of  the  lane  had  run  up  ! 
above  and  raised  a  regular  veil.  After  the  party 
from  the  bars  had  met  the  parry  from  the  house, 
they  turned  on  my  uncle.    I  then  was  passing 
up  towards Aim,    On  passing  up  I  observed  one 
of  his    slaves   running,  with  a  determination 
evinced  from  his  countenance  and  attitude  to 
snoot,  and  I  think  the  last  I  saw  of  him,  was 
that  he  was  in  the  act  of  shooting.    Whether  he 
fired  or  not  I  cannot  say,  I  think  my  uncle  re- 
ceived a  blow  over  the  head  which  knocked  him 
down,  and  he  fell  on  Ms  hands  and  knees,  and  | 
when  partially  recovered  he  received  another  j 
blow.    At  this  time  I  think  he  was  shot,  for  he 
went  down  and  fell,  I  inferred  from  the  manner, 
and  from  the  relaxation  of  his  muscles  evidently 
he  was  dead.    During  the  time,  I  heard  several 
guns  fired.    I  got  the  nearest  to  him  I  could,  for 
the  crowd  that  were  between  he  and  myself,  j 
The  others  were  rushing  up  all  around.    I  was 
nearly  or  quite  enclosed.    I  walked  through  the  j 
crowd  however.    After  I  passed  out  or  during  i 
the  time,  Gorsuch  ran  up  to  the  assistance  of  his 
father  and  fired.    I  am  satisfied  he  fired,  for  he 
had  the  pistol  presented  sufficiently  long  for  him 
to  shoot,  and  I  think  I  heard  the  report  from  his 
pistol. 

Me.  Coopee.    Which  Gorsuch  ? 

Witness.  His  son,  Dickinson.  He  raised  his 
pistol  a  second  time  to  shoot,  and  I  think  about 
that  time.  I  think  I  saw  him  change  his  posi- 
tion, as  though  he  might  have  been  struck  with 
a  club  or  something  or  other.  Whether  he  was 
struck  or  not,  I  cannot  say  distinctly,  but  I 
think  so.  At  that  time  I  passed  out  of  the  thick- 
est of  them,  and  made  my  escape.  I  t  jumped 
over  the  bars:  and  at  that  time  there  wos  a 
number  of  guns  shot.  How  many.  I  could  not 
say :  but  there  seemed  from  the  time  I  started 
running,  until  I  jumped  the  bars,  about  eight 
or  ten,  and  the  fire  was  kept  up  during  the 
whole  rout  along  the  lane.  When  I  jumped  the 
bars  I  saw  Hanway  looking  in  the  direction 
where  my  uncle  fell,  but  before  reaching  him 
he  a-kmd-a  started  off,  and  he  a-sort>a  came  to 
the  branch,  and  I  ran  up  to  him. 

Ms.  Cutt.ee.  What  do  you  mean  by  the 
branch  ?  the  ereek  ? 

Witness.  Yes,  sir.  I  ran  up  to  him  and 
spoke  to  him  and  he  passed  on.  Joshua  Gor- 
such  was  a  little  in  the  advance  of  me.  He  was 
running  ahead  of  me,  and  he  went  up  to  him 
and  asked  him  to  let  him  get  on  the  horse  behind. 
He  then. asked  him  to  loan  him  his  horse,  and 
he  begged  of  him  to  stop  and  arrest  the  negroes 
in  their  cause.  He  turned  round  to  them  and  said 
something  to  them :  what  it  was  I  cannot  say. 
but  I  know  he  replied  and  said  he  could  not  do 
anything  for  us,  and  he  hurried  off  and  left  us 
at  full  speed.  I  then  passed  up  to  to  the  farm 
house  on  the  hill.    I  omitted  to  say  that  when 


Mr.  Hanway  rode  up  to  the  bars,  the  negroes 
seemed"  to  give  up :  but  on  seeing  him  they 
raised  a  yell,  and  became  fully  confirmed  (in  my 
opinion)  to  repel  to  the  very  last  These  are  all 
the  common  run  of  things  that  I  recollect. 

Me.  G.  L.  Ashmead.  Did  you  recognize  cn 
that  occasion  any  of  the  slaves  of  Edward  Gcr- 
such  ? 

Witness.    I  recognized  Xoak. 
Me.  G.  L.  Ashmead.    Noah  who  ? 
Witness.    Noah  Buiey. 

Me.  G.  L.  Ashmead.  Who  was  the  man  you 
met  first  in  the  morning,  and  who  ran  back  in 
the  house  ? 

Witness,  That  is  more  than  I  can  sav.  I 
did  not  recognize  him. 

Me.  G.  L.  Ashmead.  Did  yon  see  any  other 
slave  of  Mr.  Gorsuch  upon  that  occasion  that  you 
recognized  ? 

Witness.    No,  sir,  I  did  not. 
Mr.  G.  L.  Ashmead.    Were  you  wounded,  doc- 
tor ? 

Witness.  As  I  stated,  I  received  a  very 
severe  blow  over  the  eye,  which  resulted  in  giv- 
ing me  a  very  black  eye,  and  quite  staggered 
me  at  the  time  I  received  it.  During  the  time  I 
was  among  the  negroes,  I  received  a  shot  in  my 
wrist,  the  impression  of  which  you  can  see  now. 
I  also  received  a  shot  in  my  shoulder  blade,  and 
in  my  spine  two  shots.  It  was  so  deep  that  it 
could  not  be  felt,  and  my  clothes  were  shot  in  a 
number  of  places. 

Me.  G.  L.  Ashmead.    How  many? 
Witness.    I  never  counted,  but  some  20  or  80. 
Me.  G.  L.  Ashmead.    Did  you  receive  any 
bullet  through  your  hat '? 

Witness.    I  received  a  1  observed  a  black 

fellow  on  the  fence  with  a  revolver.    I  do  not 
know  whether  he  fired  it,  but  afterwards  I  per- 
!  ceived  a  bullet  hole  through  my  hat,  and  the  scalp 
of  my  head  was  slightly  injured. 

Me.  G.  L.  Ashmead.  When  was  the  first  gun 
fired  upon  that  occasion  ? 

Witness.  The  first  gun  fired  that  I  saw  was 
at  my  uncle,  from  the  window,  which  I  believe  I 
omitted  to  state. 

Me.  G.  L.  Ashmead.  Was  that  before  or  after 
Hanway  came  up  ? 

Witness,    That  was  before. 
Mb.  G.  L.  Ashmead.    Who  was  it  fired  at '? 
Witness.    At  my  uncle,  sir?    I  stated  that 
I  saw  a  man  fire  at  Mm  from  one  window  and 
that  he  had  better  be  careful  ? 

Me.  G.  L.  Ashmead.    At  the  time  that  Han- 
way and  Kline  were  talking  together,  at  the  bars 
or  near  the  bars,  at  the  time  that  you  have  stated 
you  heard  a  portion  of  the  conversation,  were 
j  the  negroes  who  were  around  there,  near  enough 
'  to  hear  what  was  said? 

Witness.  Yes.  sir.  They  certainly  were. 
Me.  G.  L.  Ashmead.  You  have  just  stated 
at  the  time  you  came  down  towards  the  bars, 
just  before  the  firing  had  commenced,  or  about 
that  time,  that  you  called  for  the  Marshal,  and 
you  could  not  see  Mm  ? 
Witne-s.    Yes.  sir. 

Me.  G.  L.  Ashmead.  Will  you  be  good 
[  enough  to  point  out  the  position  you  occupied  at 


76 


TREASON  CASES. 


that  time  ?  Will  you  be  good  enough  to  look  on 
the  map  ? 

Witness.  (Looking  at  the  map.)  I  recognize 
the  plan.  I  was  some  6  or  8  steps  from  the  bars 
in  the  short  lane  near  Parker's  house. 

Judge  Grier.  Have  you  no  more  copies  of 
the  map  ? 

Mr.  Ashmead.  No,  sir.  We  will  have  two 
prepared  by  Monday. 

Mr.  G.  L.  Ashmead.  My  question  was  this. 
I  want  to  know  whether  if  the  Marshal  was  in 
the  long  lane,  a  few  steps  distant  from  the  short 
lane,  you  could  have  seen  him  from  your  posi- 
tion in  the  short  lane. 

Witness.  I  should  suppose  I  could,  had  not 
that  spot  in  which  the  Marshal  stood  obscured 
him  from  my  vision. 

Mr  G.  L.  Ashmead.  About  how  many  negroes 
were  there  on  this  occasion  ? 

Witness.    At  the  lowest  estimate  about  80. 

Mr.  \x.  L.  Ashmead.  Did  you  see  any  other 
white  men  there  upon  that  occasion  than  the  two 
you  have  described  or  mentioned  ? 

Witness.  I  saw  white  men  running,  (as  I 
passed  down  the  lane,)  across  the  field.  I  should 
take  them  to  be  white  men. 

Mr.  Ashmead.  Before  the  fight,  had  you  seen 
any  more  white  men  than  the  two  you  mentioned  ? 

Witness.    No,  sir,  none  at  alL 

Mr.  G.  L.  Ashmead.  Did  you  see  Dickerson 
Gorsuch  after  this  transaction  ? 

Witness.  No,  sir,  not  until  I  saw  him  at  Mr. 
Pownell's  that  same  evening. 

Mr.  G.  L.  Ashmead.  Be  good  enough  to  state 
in  what  condition  he  was,  at  that  time. 

Witness.  I  considered  him  to  be  in  a  very 
prostrated  condition,  his  pulse  was  scarcely  per- 
ceptible, the  fever  high,  and  the  pain  intense. 

Mr.  G.  L.  Ashmead.  State  where  he  was 
wounded. 

Witness.  He  was  wounded  in  the  posterior 
part  of  the  right  arm,  and  the  side.  The  shot  I 
think  came  rather  obliquely. 

Mr.  G.  L.  Ashmead.  About  how  many  shots 
were  in  his  side  ? 

Witness.  I  think  the  Doctor  said  there  were 
over  70,  I  did  not  count  them. 

Judge  Grier.    Small  shot  ? 

Witness.    No,  sir,  squirrel  shot. 

Mr.  G.  L.  Ashmead.  About  40  in  his  side 
and  30  in  his  arm  ? 

Witness.  About  40  in  his  side  and  30  in  his 
arm,  or  30"  in  his  side  and  40  in  his  arm.  Dr. 
Patterson  said  there  was  70. 

Mr.  G.  L.  Ashmead.  What  was  your  opinion 
of  his  condition  at  that  time  ? 

Witness.  My  opinion,  sir,  on  the  evening  I 
saw  him  there,  was,  that  he  certainly  was  dying. 
B^espiration  was  very  difficult,  fever  high,  and 
pulse  remarkably  low,  which  led  one  to  believe 
there  was  very  little  hopes  of  his  recovery. 

Mr.  G.  L.  Ashmead.  Do  you  know  how  long 
it  was  before  he  reached  home  in  Maryland  ? 

Witness.  No,  sir.  I  cannot  say.  I  think  in 
the  neighborhood  of  four  weeks  to  the  best  of  my 
recollection. 

Mr.  G.  L.  Ashmead.  Did  you  see  Joshua  M. 
Gorsuch  after  this  transaction  ? 


Witness.  I  did,  sir,  on  Friday  or  Saturday,  I 
forget  which.  I  think  on  Friday,  it  was  just 
after  I  arrived  home  I  saw  him. 

Mr.  G.  L.  Ashmead.  Be  good  enough  to  state 
what  his  condition  was  at  that  time. 

Witness.  I  found  him  in  bed.  I  did  not  ex- 
amine him.  I  did  not  feel  his  pulse,  I  merely 
conversed  with  him  and.  he  showed  me  his  wound. 

Mr.  G.  L.  Ashmead.    Where  was  it  ? 

Witness.*  The  wound  was  on  the  hinder  part 
of  the  cervicle  and  occipatal  bones,  crossing  the 
suture,  and  I  think  it  was  about  three  inches  in 
length. 

Mr.  G.  L.  Ashmead.  Did  they  have  any  effect 
upon  his  mind  ? 

Witness.    It  certainly  had  a  decided  effect. 

Mr.  G.  L.  Ashmead.  State  what,  if  you 
please. 

Witness.  Generally  before  this  affair  he  was 
not  inclined  to  talk  much,  and  at  that  time  I 
found  him  conversing  decidedly  more  than  I  had 
ever  heard  him  at  any  future  time,  and  much 
easier  excited.  He  appeared  to  be  much  more 
excitable. 

Judge  Grier.  Was  it  a  gun-shot,  or  a  bruise  ? 

Witness.  At  the  time  I  looked  back ;  at  the 
time  the  fellow  had  shot  the  last  gun  at  me,  he 
turned  back  and  met  Joshua.  I  saw  him  raise 
the  gun  and  strike  him.  It  might  be  a  gun,  I 
think  it  was.  He  fell  forward,  whether  he  fell 
to  the  ground  or  not,  I  cannot  say. 

Mr.  G.  L.  Ashmead.  At  the  time  that  Joshua 
Gorsuch  requested  Mr.  Hanway  to  let  him  get  on 
the  horse,  what  did  Mr.  Hanway  say  ? 

Witness.  He  said  he  could  do  nothing  for 
us,  and  he  said  something  else ;  but  that  I  heard 
distinctly. 

Mr.  G.  L.  Ashmead.  After  Hanway  had  left, 
did  Joshua  Gorsuch  continue  to  run  up  the  lane  ? 

Witness.  Yes,  sir,  he  did,  and  they  then 
shot  at  us. 

Mr.  G.  L.  Ashmead.  Did  the  firing  at  you 
continue  during  that  time  ? 

Witness.  Yes,  sir ;  until  they  had  struck 
Joshua. 

Mr.  G.  L.  Ashmead.  After  Hanway  had  left, 
who  was  ahead,  you  or  Joshua  ? 

Witness.  I  ran  with  Joshua  for  a  time,  but 
finding  that  they  were  overtaking  us  rapidly,  I 
ran  off  as  quick  as  possible,  and  left  Joshua 
behind. 

Question.  Did  you  look  back  after  you  had 
got  ahead  of  him  ? 

Answer.    I  did,  as  I  stated. 

Question.    What  did  you  see  ? 

Answer.  I  saw  this  fellow  strike  him  over 
the  head  with  what  I  took  to  be  a  gun. 

Question.    Did  he  fall  when  he  was  struck? 

Answer.  He  fell  forward;  whether  to  the 
ground  or  not  I  cannot  say. 

Question.  Have  you  stated  all  the  conversa- 
tion at  the  bars,  or  near  the  bars,  between  Han- 
way and  the  Marshal,  that  you  can  recollect  ? 

Answer.  Yes,  sir.  All  I  can  distinctly  re- 
collect. I  had  a  conversation  with  Hanway,  but 
what  is  was,  I  cannot  at  this  time  recollect. 

Question.  Be  good  enough  to  state  what  you 
said  to  him. 


UNITED 


STATES  V. 


HANWAY. 


Answer.  Why,  I  asked  him,  why  he  camo 
there  ;  what  was  the  object  of  his  coming  there  ; 
whether  he  had  better  not  stay  away,  or  whether 
he  did  not  suppose  his  presence  inspired  them. 
He  gave  me  a  very  decided  answer  at  that  time, 
which  struck  me. 

Mr.  Brent.    Where  was  that  conversation  0 

Answer.    At  the  bars 

QrESTiON.    The  same  clay? 

Answer.  The  same  day.  I  cannot  recollect 
what  Hanway  said. 

Question.  YVas  Hanway's  manner  wild  or 
otherwise  ? 

Mr.  Stevens.    What  he  said  and  did. 

Judge  Grier.    What  he  said  and  did. 

Mr.  Read.  That  is  making  the  witness  the 
judge  of  what  the  manner  was. 

Mr.  Ashxead.  He  had  a  conversation,  the 
details  of  which  he  does  not  recollect.  We  now 
propose  to  ask  him  the  manner  of  his  conversa- 
tion, whether  it  was  angry  or  mild.  He  can 
remember  the  tone  of  it ;  and  the  manner  after 
all  means  as  much  as  the  matter. 

Judge  Grier.  You  can  tell  whether  it  was 
angry  or  pleasant. 

Answer.  It  was  decidedly  angry ;  the  con- 
versation on  both  sides. 

Mr.  Cooper.  Were  there  more  than  one  party 
of  negroes  on  the  ground  ? 

Answer.  YTes.  They  might  have  divided 
into  as  many  parties  as  they  thought  proper. 

Question.  Did  they  come  together,  a  number 
of  them  ? 

Answer.  Yes.  A  number  of  them  were  at 
the  bars,  and  there  came  a  party  and  sur- 
rounded me. 

Question.    Did  they  form  into  groups? 

Answer.  Y"es  sir.  I  think  a  number  had 
assembled  when  the  Marshal  was  there ;  and 
another  party  surrounded  me,  and  out  of  which 
I  had  to  walk  before  I  could  make  my  escape. 

Question.  What  number  do  you  suppose 
were  in  that  group  ? 

Answer.    There  were  two  groups. 

Question.    I  mean  the  group  at  the  bar?  ? 

Answer.  One  party  came  from  the  house, 
and  in  another  distinct  party  there  might  have 
been  10  or  more. 

Question.  Y'ou  stated  they  were  generally 
armed  ? 

Answer.  Yes;  but  I  don't  know  what  they  had. 

Question.  Where  did  you  first  see  Dickinson 
Gorsuch  after  the  fight  ? 

Answer.    I  saw  him  at  Mr.  PowiielFs. 

Question.  What  condition  was  he  in,  men- 
tally, at  that  time  ? 

Answer.  Why,  sir,  he  was  in  a  very  pros- 
trated condition.  He  evidently  had  his  reason 
about  him.  He  knew  me,  recognized  me,  and 
conversed  with  me,  but  he  was  certainly  in  a 
very  prostrated  condition. 

Question.  Which  party  was  it  that  raised 
the  yell  ? 

Answer.  The  party  that  came  from  the 
house.  When  the  other  party  met  the  first  set 
advancing  to  the  bars. 

Question.  Was  that  before  or  after  Mr.  Han- 
way had  spoken  to  the  Marshal  ? 


Answer.    Oh  !  it  was  after,  certainly. 

Question.  How  quickly  after  the  shout  did 
the  firing  succeed  ? 

Answer.  The  firing  commenced  nearly  about 
the  same  time.  After  the}'  had  made  the  shout, 
they  turned  on  my  uncle  and  knocked  him  down. 

Mr.  Brent.  Ytou  say  that  the  Marshal  des- 
patched a  person  to  Penningtonville.  Who  was  it? 

Answer.  He  requested  Joshua  Gorsuch  to 
go. 

Question.  Did  he  request  him  bona  fide  to 
go  or  not  ? 

Answer.  I  merely  saw  the  instrument  he  gave 
to  him. 

Question.    Y'ou  did  not  hear  his  remarks  ? 
Answer.    Xo,  sir. 

Question.  Was  it  in  the  presence  of  the  per- 
sons at  the  windows  of  the  house,  so  that  they 
could  see  ? 

Answer.    I  think  they  could. 

Judge  Grier.  I  suppose  they  were  to  bring 
men  from  the  village  ? 

Answer.    Y'es,  sir. 

Mr.  Brent.    Did  you  hear  any  noises  or 
sounds  from  the  house  before  Hanway  arrived  ? 
Answer.    I  heard  horns  blown. 
Question.    From  the  house  ? 
Answer.    YTes,  sir. 

Question.  Were  you  near  enough  to  hear  all 
that  passed  between  Hanway  and  Mr.  Kline,  ("the 
conversation)? 

Answer.  When  I  approached  him  he  was 
talking  in  a  loud  tone  which  I  distinctly  heard, 
what  I  have  stated  before. 

Question.  What  is  the  nearest  point  you 
ever  attained  while  they  were  conversing,  Han- 
way and  the  Marshal? 

Answer.  I  think  I  had  approached  twice 
within  may  be  fifteen  steps. 

Question.  Were  Kline  and  Lewis  on  the  other 
side  of  the  bars,  or  where  they  the  side  of  the 
house? 

Answer.  They  were  standing,  as  it  were,  in 
the  mouth  of  the  lane,  on  the  other  side  of  the 
bars. 

Question.  Y"ou  say  you  saw  some  white  men 
running  over  the  fields,  how  many  do  you  sup- 
pose? 

Answer.    Some  six  or  se^en. 
Question.    Appear  to  be  as  many  as  that  ? 
Answer.    I  should  suppose  there  was. 
Question.    Where  did  they  run  from  ? 
Answer.    I  think  from  the  drean  or  creek. 
Question.     Were  they  nearer  to  Parker's 
house  than  the  creek? 

Answer.    Not  that  T  know  of. 
Question.    Were  you  near  enough  to  identify 
whether  they  were  white  or  yellow  ? 

Answer.  I  think  they  were  white  men,  at  that 
time  that  was  my  impression.     I  think  I  saw 
I  one  drop  his  hat,  which  I  recognized  as  a  white 
'  man. 

Question.  Did  you  see  any  negroes  riding 
up  on  horseback  ? 

Answer.    I  saw  several  of  them  riding. 
Question.    Were  they  armed,  sir  ? 
Answer.    Y'es  sir,  I  think  they  were. 
Question.    You  say  you  saw  2S  oak  Buiey  ? 


78 


TREASON  CASES. 


Answer.    Yes,  sir. 

Question.  Did  he  run  from  or  towards  the 
house  ? 

Answer.    He  was  running  from  the  house. 

Question.    Did  he  come  on  horseback  ? 

Answer.  I  do  not  know,  but  I  saw  him  come 
in  that  direction. 

Question.  Did  you  see  any  other  of  the 
slaves  ? 

Answer.    Not  that  I  recollect. 
Question.    He  did  not  come  out  of  the  house 
so  far  as  you  saw  ? 
Answer.    No,  sir. 

Question.  I  do  not  think  you  stated  with 
regard  to  the  wounds  of  Dickenson  Gorsuch  ? 

Answer.  He  was  laboring  from  a  hemor- 
rhage, and  the  frothy  appearance  of  the  blood 
showed  it  was  impregnated  with  air,  passing 
through  the  air  cells. 

Question.    He  bled  out  of  the  mouth  ? 

Answer.  Yes,  sir,  and  this  proved  conclu- 
sively his  lungs  were  injured.  He  expectorated 
clots  of  blood  I  think  on  Sunday  morning. 

Cross-examined  by  Mr.  Stevens. 

Question.  At  the  time  that  you  heard  the 
conversation  between  Kline  and  Hanway,  Mr. 
Lewis  was  there,  I  think  if  I  understand  you 
right  ? 

Answer.    I  think  so,  sir. 

Question.  They  were  not  at  the  bars  but  up  at 
the  mouth  of  the  short  lane  as  it  intersects  the 
long  lane  ? 

Answer.  They  were  about  the  bars.  I  cannot 
answer  the  question  any  more. 

Question.  I  understood  you  -to  say  they  were 
in  the  lane  ? 

Answer.  I  said  they  were  on  the  bank. 

Question.  I  want  to  know  how  near  the  mouth 
of  the  lane  they  were  ? 

Answer.  I  think  between  the  bars  and  the 
lane,  I  mean  the  long  lane  and  the  mouth  of  the 
short  lane. 

Question.  It  is  about  fifteen  or  eighteen  yards 
from  the  bars  to  the  mouih  of  that  lane  ? 

Answer.  I  don't  know,  sir. 

Judge  Grier.  It  can  be  accurately  ascer- 
tained. 

Mr.  Stevens.  How  many  feet  is  it  gentle- 
men? 

Mr.  Ludlow.  Forty-three  feet  from  the  mouth 
of  the  lane  to  the  bars. 

Mr.  Stevens.  Then  I  understand  you  that 
the  colored  persons  who  were  there,  were  on  the 
other  side  of  the  long  lane. 

Answer.  I  took  that  to  be  from  the  position 
I  occupied. 

Question.  To  whom  did  Mr.  Hanway  and 
Lewis  address  their  conversation  ?  With  whom 
were  they  conversing  ? 

Answer.  They  were  conversing  as  far  as  I 
saw  with  the  Marshal. 

Question.    And  with  Kline  I  suppose  ? 

Answer.  Well  he  was  the  only  Marshal  we 
had,  so  of  course  I  mean  him. 

Question.    He  is  not  the  Marshal  ? 

Answer.    Well,  he  was  the  deputy. 

Mr.  Cuyler.    He  was  not  even  a  deputy  ? 

Question.    You  mean  Mr.  Kline  ? 


Answer.  I  understood  he  was  the  Deputy 
Marshal,  whether  he  was  or  not,  I  don't  know. 

Question.  I  understand  you,  before  that,  you 
went  up  to  call  Mr.  Kline.  Did  you  see  Han- 
way at  that  time  ? 

Answer.  He  was  standing,  sir,  at  that  time 
between  the  bars  and  the  branch. 

Question.    You  mean,  down  the  long  lane  : 

Answer.  '  Yes,  sir. 

Question.  How  near  to  the  mouth  of  the 
short  lane  ? 

Answer.    He  had  passed  clown  the  long  lane. 

Question.    Near  the  branch  ? 

Answer.  No,  sir,  about  midway,  with  his 
face  towards  the  house. 

Question.    Hanway,  you  are  speaking  of? 

Answer.    Hanway,  I  am  speaking  of. 

Question.    On  horseback  ? 

Answer.    Certainly  he  was  on  horseback. 

Question.  What  is  the  distance  from  the 
mouth  of  the  short  lane,  down  to  the  creek  ? 

Answer.  I  don't  know  whether  he  was  mid- 
way, but  I  suppose  about  that.  That  was  my 
conclusion  at  the  time. 

Mr.  G.  L.  Ashmead.    About  640  foot. 

Mr.  Ludlow.    Somewhere  thereabout. 

Mr.  Stevens.  Where  were  this  party  of 
negroes  that  had  been  standing  on  the  other  bank 
opposite  the  mouth  of  the  lane,  at  the  time  you 
went  to  look  for  Mr.  Kline  ? 

Answer.    They  had  passed  up. 

Question.    That  was  before  you  went  up  ? 

Answer.  Before  I  came  in  that  direction,  I 
saw  Kline. 

Question.    They  had  all  passed  down  ? 

Answer.    They  had  passed  up. 

Question.    Towards  the  house  ? 

Answer.    Towards  the  house. 

Question.  But  there  had  no  firing  taken 
place  ? 

Answer.    Not  that  I  heard. 

Question.  Well  now,  sir,  from  the  time  you 
escaped  over  the  bars  out  of  the  short  lane  did 
you  see  any  firing  in  the  long  lane  ? 

Answer.    I  might  certainly.    I  heard  firing. 

Question.    I  mean  before  you  retreated. 

Answer.  After  I  went  down  for  Kline  I  re- 
turned, I  stated,  and  another  party  surrounded 
me,  and  it  was  out  of  that  party  I  walked. 
They  shot  my  uncle  about  that  time. 

Question.  You  misunderstand  me.  From  the 
time  you  looked  for  the  Marshal  until  you  re- 
treated did  you  see  any  body  firing  in  the  long 
lane? 

Answer.  I  heard  no  firing  in  the  long  lane. 
My  attention  was  not  directed  to  the  long  lane. 

Question.  Did  you  hear  any  firing  in  the 
long  lane. 

Answer.  My  attention  was  not  directed  there 
and  of  course  I  did  not  hear. 

Question.  I  did  not  ask  where  your  attention 
was  directed,  I  asked  if  you  heard  any  in  the 
long  lane  ? 

Answer.    I  stated  I  did  not. 

Question.  Well,  that  is  about  the  amount  of 
it.  You  speak  of  retreating  and  overtaking  Han- 
way beyond  the  Creek,  which,  I  suppose  was  up 
towards  Rogers'  house,  was  it  not  ? 


UNITED  STATES  V.  HANWAY. 


79 


Answer.    Yes,  sir. 

Question.  Have  you  said  to  anybody  after 
tha/  transaction  that  Hanway,  when  you  were 
pursued,  turned  rouud  and  tried  to  stop  the 
nejroes,  and  did  turn  a  part  of  them  back  ? 

Answer.  I  never  said,  sir,  that  I  thought  he 
turned  a  part,  but  wb ether  he  did  or  not  I 
Cf/nnot  say.  I  never  said  he  turned  a  part,  I 
said  it  was  my  opinion. 

Question.    You  gave  it  as  your  opinion  ? 

Answer.    Yes,  sir.    I  did  at  that  time. 

Question.  Have  you  not  said  that  you  heard 
him  ask  them,  order  them,  or  implore  them  to 
go  back  ? 

Answer.  No,  sir.  I  never  said  any  thing  like 
that. 

Question.  Have  you  not  said  you  verily  be- 
lieved you  owed  your  life  to  Mr.  Hanway  ? 

Answer.    I  never  used  those  terms. 

Question.  Have  you  not  in  substance  said 
you  believed  it  ? 

Answer.  Believing  it  and  saying  it  are  two 
different  things.  I  said  he  might  have  turned  a 
part  of  them  back,  and  saved  my  life  in  conse- 
quence of  that  being  the  fact. 

Question.  Have  you  not  said  to  any  person 
you  believed  you  owed  your  life  to  Mr.  Han- 
way ? 

Answer.  No,  sir;  I  never  said  any  such 
thing. 

Judge  G-rier.    What  did  you  say  ? 

Answer.  I  said  I  did  not  know ;  but  when 
be  turned  round,  he  turned  back  a  part,  and  to 
which  1  might  attribute  my  life. 

Question.  Did  you  never  tell  Squire  Dick- 
son you  believed  you  owed  your  life  to  Hanway  ? 

Answer.    I  don't  know  him. 

Question.  I  speak  of  a  gentleman  living  at 
Christiana  ? 

Answer.    I  don't  know  that  I  ever  saw  him. 

Question.  Did  you  ever  go  up  in  the  cars 
from  Christiana,  when  you  met  a  gentleman  and 
conversed  with  him  on  this  subject  ? 

Answer.    I  do  not  recollect. 

Question.  Then  you  don't  know  that  you 
told  Mr.  Dickson  what  I  stated  ? 

Answer.    I  don't  know  it,  sir. 

Question.    Did  you  tell  Dr.  Patterson  ? 

Answer.  No,  sir,  I  did  not.  I  have  stated 
to  Dr.  Patterson  as  I  have  stated  to  the  Court. 

Judge  Grier.    What  did  you  state  ? 

Answer.  I  said  it  was  my  opinion,  and  I 
gave  it  as  my  opinion  from  the  first  time  I  men- 
tioned it,  and  every  time  I  have  ever  spoken 
about  it. 

Mr.  Stevens.  You  now  give  it  as  your 
opinion  ? 

Answer.    I  gave  it  as  my  opinion  then. 
Judge  Grier.    That  turning  back  had  saved 
your  life  ? 

Mr.  Stevens.    Turning  back  the  negroes. 

Judge  Grier.  I  understood  he  had  expressed 
his  opinion  that  the  turning  back  of  the  prisoner 
had  saved  his  life  ? 

Mr.  Stevens.  He  said  the  turning  back  of 
the  negroes. 

Question.  Now,  sir,  have  you  told  anybody 
that  you  believed  that  Kline  was  a  coward,  and 


left  the  ground,  or  there  would  have  been  no 
firing  and  no  mischief  done. 

Answer.    Never,  sir.    I  never  said  so. 

Question.  Did  you  not  tell  J.  G.  Henderson 
so,  or  words  to  that  effect  ? 

Answer.  I  do  not  recollect  having  any  con- 
versation with  him  about  that. 

Question.    Did  you,  in  his  presence  ? 

Answer.    No,  sir. 

Question.  I  am  speaking  of  what  you  said 
at  Levi  Pownell's. 

Answer.  I  cannot  tell  what  I  said  on  the 
subject.  Whether  he  was  present,  I  do  not 
know. 

Question.  I  ask  you  whether  you  did  not 
distinctly  say  that  Kline  was  a  coward,  and  had 
left  the  ground,  or  this  would  not  have  hap- 
pened ? 

Answer.    No,  sir  ;  I  never  said  so. 

Question.  Did  you  say  that  the  whole  diffi- 
culty or  at  least  the  fatal  part  of  it  arose  from 
the  imprudent  conduct  of  your  uncle  ? 

Answer.  I  might  have  said  it,  sir,  and  I  con- 
sidered it  imprudent  in  him  in  going  into  the 
fight. 

Question.  You  know  Mr.  Lewis  Cooper,  you 
have  seen  him  I  believe.  Did  you  say  in  his  pre- 
sence that  the  Marshal  was  a  poor  thing,  and 
ran  from  the  ground  on  the  first  intix>ia.tk)a  of 
danger  ? 

Answer.  No,  never,  sir.    Never,  sir. 

Mr.  Read.  I  will  ask  you  in  addition  to  Mr. 
Stevens,  to  state,  whether  you  did  not  say  to 
Lewis  Cooper,  on  the  next  day  after  the  riot  at 
Levi  Pownell's  house  that  Kline  was  a  monstrous 
poor  thing,  that  you  had  no  confidence  in  him, 
whatever,  and  that  he  ran  on  the  first  intimation 
of  danger. 

Answer.  I  do  not,  sir.  I  did  not,  T  should  say. 

Mr.  Brent.  About  the  turning  back  of  these 
negroes.  I  understand  you  to  say  the  most  dense 
portion  of  them  who  were  pursuing  you,  turned 
back  after  Hanway  said  something  to  them,  but 
the  portion  that  was  nearest  to  you  only  ceased 
in  the  pursuit,  after  that  firms:  and  beyond  that 
point? 

Answer.  Yes,  sir.  I  received  a  shot  after  that 
time  some  hundred  and  fifty  yards  beyond  that 
point,  and  it  was  beyond  that  point  that  Joshua 
Gorsuch  received  a  severe  blow  over  the  head  ? 

Mr.  Brent.  Then  sir,  you  expressed  your 
opinion  that  if  he  had  effected  turning  the  van- 
guard of  them  back,  it  might  have  saved  your 
life  ? 

Answer.  I  thought  that  if  the  larger  portion 
had  not  turned  back,  they  might  have  pursued 
us  further. 

Question.  Was  he  not  near  enough  to  Joshua 
Gorsuch  to  take  him  on  his  horse  ? 

Mr.  Stevens  Objected  to,  on  the  possibility 
of  doing  a  thing. 

Answer.  I  considered  there  was  sufficient 
length  of  time  to  have  taken  him  up  if  he  thought 
proper. 

Mr.  Brent.  You  say  that  his  reply  to  you  was 
that  he  could  do  nothing  for  you? 

Answer.  Yes,  sir,  that  is  the  remark  as  near 
as  I  can  recollect. 


TREASON  CASES. 


Question.  Did  you  hear  Han  way  at  that  time 
on  the  ground  or  any  other  place  use  language 
to  restrain  the  colored  persons. 

Mr.  Stevens.  Objected  to.  Let  him  state 
what  he  did  hear  ;  I  do  not  like  such  insinuations 
with  a  witness. 

Mr.  Brent.  As  far  as  I  can  say,  there  is  no 
insinuations  on  the  part  of  counsel,  and  the  re- 
mark of  the  counsel  on  the  other  side  is  unwar- 
rantable It  was  asked  by  the  other  side  to  put 
the  question  in  another  way,  and  I  merely  modi- 
fied it  to  suit  their  convenience. 

Mr.  Lewis.  I  beg  leave,  may  it  please  the 
Court,  to  submit  an  objection  to  this  form  of  ex- 
amination altogether.  The  witness  has  already 
stated  that  he  did  not  hear  what  Mr.  Hanway 
said.  Is  not  that,  if  the  Court  please,  enough, 
and  is  he  now  by  the  manner  in  which  the  ques- 
tion is  to  be  put,  to  have  a  different  meaning 
insinuated  into  the  jury-box. 

Mr.  Stevens.  The  Court  will  allow  me  to 
suggest  this  is  examination-in-chief,  and  not  in 
answer  to  any  question  we  have  asked. 

Mr.  Brent.  The  objection  to  the  question  is 
that  it  was  leading,  and  when  suggested  it  should 
be  put  in  another  form,  I  did  so.  A  suggestion 
came  from  the  other  side  of  the  table,  that  that 
was  not  the  proper  form  in  which  to  put  the 
question.  The  counsel  who  spoke  last,  Mr. 
Lewis,  is  certainly  mistaken.  The  witness  said 
he  did  not  hear  all  the  conversation,  and  non 
constat  that  he  might  have  heard  other  conver- 
sations during  different  parts  of  the  drama.  I, 
therefore,  ask  to  put  the  question. 

Mr.  Read.  I  think  this  difficulty  is,  that  the 
United  States  have  examined  this  witness  in-chief, 
and  that  nothing  they  now  ask  grows  out  of  our 
cross-examination.  After  they  have  gone  through 
one  examination-in-chief,  another  cross-examina- 
tion is  injurious  to  the  progress  of  this  cause ; 
and  in  this  particular  instance  the  proper  mode  for 
the  United  States  is  to  exhaust  their  questions  in 
the  first  instance,  and  then  not  to  commence  on 
a  new  point,  after  the  cross-examination. 

Judge  Grier.  The  counsel  who  last  spoke,  has 
certainly  stated  the  general  rule  correctly ;  where 
a  party  may  have  overlooked  a  point,  he  then 
may  have  leave  to  ask  it  again.  A  witness  may 
have  stated  certain  parts  of  a  transaction  and 
omitted  certain  other  parts,  the  counsel  may 
then  ask  if  he  has  any  thing  further  to  say. 

Judge  Kane.  I  do  not  know  whether  a  part  of 
the  testimony  of  this  witness  was  given  in  cross- 
examination,  or  in  his  examination-in-chief ;  that 
part  I  mean,  which  spoke  of  the  retreat  of  the 
witness  in  company  with  Hanway.  The  action 
or  manner  of  Mr.  Hanway  may  have  kept  the 
negroes  at  bay.  If  so,  the  question  having  been 
asked,  what  did  Mr.  Hanway  say  then,  and  the 
witness  having  replied  he  did  not  hear,  and  hav- 
ing afterwards  in  answer  to  another  question  from 
the  prisoner's  counsel,  said  that  it  was  his  opin- 
ion that  it  might  have  had  the  effect  of  saving 
his  life  by  arresting  the  pursuit,  it  might  be  legi- 
timate then,  for  the  counsel  for  the  prosecution, 
again  to  ask  whether  any  thing  had  been  heard 
from  him  which  could  have  influenced  the  retreat 
of  that  body. 


Mr.  Ccjyler.    Then  your  honor  confines  the 
question  to  that  particular  time. 

Judge  Ka.ne.    Or  before,  if  it  could  h;ve 
influenced  that  retreat. 

Mr,  Brent.  I  wish  to  understand  the  exttnt 
to  which  the  Court  will  allow  me  to  go.  Tie 
cross-examination  brought  out  the  fact,  that  tie 
witness  expressed  an  opinion  that  in  consequence 
of  Hanway's  turning  round,  that  a  portion  of 
them  might  have  turned  back — and  that  that 
might  have  had  the  effect  of  saving  his  life. 

To  rebut  that  opinion  of  the  witness,  I  desire 
to  know  whether  the  witness  had  heard  Hanway 
at  any  time  during  this  transaction,  use  any 
remarks  for  the  purpose  of  restraining  them, 

Mr.  Read.  That  will  cover  all  the  ground, 
and  will  take  us  back  to  the  commencement, 

Mr.  Brent.    It  is  to  repel  the  inference. 

Mr.  Stevens.  It  is  not  possible  that  anything 
he  might  have  heard,  could  have  influenced  him 
in  any  opinion.  It  is  new  matter  to  us.  He  is 
not  to  give  the  reasons  why  he  formed  it,  and 
the  reasons  he  ought  not  to  have  formed  it. 

Judge  Grier.  That  is  just  what  they  ought 
to  do. 

Mr.  Brent.  Does  the  Court  say  I  can  ask 
the  question. 

Judge  Grier.    Yes,  sir. 

Mr.  Brent.  State  if  you  heard  any  such  con- 
versation to  restrain  the  negroes  from  Hanway  ? 

Answer.    I  did  not,  sir,  at  any  time. 

Question.  Where  did  you  first  see  him,  ivr, 
after  your  escape  oiit  of  the  long  lane  ? 

Answer.  He  was  then  standing  at  the  point 
I  stated.    He  was  stationary. 

Mr.  Cooper.  AVas  Hanway  between  the 
larger  party  of  negroes  that  were  following  you 
at  the  time  you  speak  of  the  conduct  that  proba- 
bly saved  your  life  ? 

Answer.  We  were  in  the  front  of  Haiiway ;  ■ 
the  dense  mass  was  behind. 

Mr.  Cooper.    That  is  all. 

Mr.  G.  L.  Ashmead.  Will  the  marshal  be 
good  enough  to  send  for  Mr  J.  M.  Gorsuch. 

On  motion  of  Mr.  G.  L.  Ashmead,  the  witnesses 
who  had  been  examined  were  ordered  to  leave 
the  court  room. 

J.  M.  Gorsuch,  sworn. 

Mr.  G.  L.  Ashmead.  Did  you  reside  in  the 
State  of  Maryland,  near  the  late  Edward  Gor- 
such ? 

Answer.  I  was  neighbor  to  the  late  Edward 
Gorsuch,  on  the  adjoining  farm. 

Question.    Are  you  a  relative  ? 

Answer.    I  am  a  cousin  to  Edward  Gorsuch. 

Question.  Did  you  accompany  Mr.  Edward 
Gorsuch,  Mr.  Kline,  and  others  to  Christiana,  in 
the  month  of  September  last  ? 

Answer.    I  did. 

Question.    Did  you  reach  Parker  s  house  on 
the  morning  of  the  11th  of  September  last  ? 
Answer.    I  did. 

Question.  After  you  were  up  there,  sir,  did 
you  hear  any  instrument  of  any  kind  ? 

Answer.  I  heard  the  sound  of  a  bugle,  as 
I  supposed,  some  ten  minutes,  may  be,  before 
I  got  there;  it  might  not  have  been  quite  so 
I  much. 


UNITED  STATES  V.  HANWAY. 


81 


Question.  From  which  side  did  the  bugle 
sound,  the  right  or  left  ? 

Answer.    It  appeared  to  be  to  ray  right. 

Question.  Will  you  be  good  enough  to  state  to 
the  court  and  jury  now,  all  that  you  recollect  of 
what  was  said  and  done  upon  that  occasion  from 
first  to'  last  ?  Go  on  in  your  own  way  without 
any  question  being  asked. 

Answer.  "We  went  on  then  to  the  bars  that 
led  to  Parker's  house;  we  heard  some  one  sing- 
ing; some  one  observed,  "  Here  they  are;"  part 
of  us  jumped  over  the  bars  and  after  them  ;  I 
myself  did  not  see  them,  but  immediately  pursued 
to  the  house.  When  I  got  to  the  house,  Edward 
Gorsuch  told  his  servant,  Nelson,  to  come  down 
and  give  himself  up,  that  he  had  seen  him,  and 
they  replied  several  times  that  he  was  not  there. 
Edward  Gorsuch  observed,  that  he  had  seen  him, 
he  might  as  well  come  down  and  give  himself  up, 
for  it  would  be  better  for  him.  We  staid  outside 
of  the  door,  and  there  was  a  piece  of  wood  thrown 
down  and  struck  me  on  the  top  of  the  shoulder. 
I  heard  Dr.  Thomas  Pierce  then  observe,  that  he 
was  struck  somewhere  about  the  eye,  (here)  and 
made  it  black.  I  did  not  see  that.  Shortly  af- 
ter there  was  a  fire  from  the  window  above  ; 
the  blazing  apparently  of  the  powder  was  not 
more  than  that  far  (witness  describes  the  dis- 
tance between  his  hands)  from  Edward  Gorsuch's 
hat.  Edward  Gorsuch  observed,  you  have  shot 
at  me  ;  and  demanded  that  they  should  give  his 
property  up  out  of  that  house.  There  was  a 
great  many  words  used  which  I  dont  remember 
now,  but  not  of  any  material  importance  that  I 
can  recollect.  There  was  talking  from  both 
sides.  Parker  said  that  he  was  not  there ;  I  ob- 
served, "  possibly  you  dont  know  them  by  that 
name;"  says  I,  "these  persons  have  assumed 
fictitious  names;  and  then  the  marshal  was  or- 
dered to  read  the  warrants  to  them.  The  mar- 
shal did  so.  Whether  the  time  given  them  to 
make  up  their  minds  to  come  down,  was  heard  or 
not  I  do  not  remember  myself.  There  was  a 
man  rode  up  to  the  bars  on  horseback  I  didn't 
notice  him  when  he  first  came,  that  I  recollect  of, 
but  saw  him  there.  I  observed  to  the  marshal, 
that  he  was  there.  The  marshal  went  to  him, 
and  while  he  was  there,  he  called  to  me.  All 
this  time,  there  had  been -a  number  of  colored 
persons  assembling  in  the  short  lane,  and  as  I 
was  making  my  way  to  the  bars,  I  discovered  a 
company  of  them  coming ;  they  appeared  to 
come  in  gangs  of  fifteen  or  twenty.  The  marshal, 
says  he  to  me,  tell  your  cousin  to  come  on,  that 
this  man  I  hold  responsible  for  them,  provided  he 
is  worth  it,  and  his  property  is  secured  to  him. 

Question.    What  man  ? 

Answer.  I  allude  to  Mr.  Hanway.  I  returned 
then  back  again,  to  him  immediately  and  says  I 
to  Edward  ;^the  Marshal  says,  come  on  now,  your 
property  is  secured  to  you,  provided  this  man  is 
worth  it.  I  believe  he  was  just  in  the  act  of 
starting  as  a  colored  man  struck  him  on  the  head 
with  a  club.  As  soon  as  he  had  recovered  from 
his  position  of  falling,  for  he  had  reached  the 
ground,  I  believe  on  his  hands  and  knees ;  he  was 
struck  several  times,  one  after  another,  and  they 
apparently  gave  him  no  time  after  that.    I  dis- 


covering that  they  were  intending  to  kill  the 
whole  of  us,  and  especially  Edward,  and  as  I  did 
not  like  to  see  him  murdered  in  that  state,  I 
aimed  to  shoot  one  of  them.  My  cap  burst  and 
did  not  go  off.  I  then  was  beat  severely,  I  believe 
the  first  one  that  struck  me  I  aimed  to  shoot  him. 
I  didn't  see  whether  it  took  effect,  but  am  of 
opinion  that  I  must  have  shot  him',  I  didn't  see  it 
take  effect  hows'ever,  all  that  time  I  became 
somewhat  turned  round.  All  this  time  a  thought 
flashed  over  my  mind  that  I  should  run,  I  didn't 
have  any  idea  of  getting  farther  from  where  I 
stood,  for  I  found  they  were  determined  to  kill 
me.  I  run,  and  they  made  after  me,  and  as  I 
was  going  towards  the  bars  I  saw  Dickinson  Gor- 
such, son  of  Edward  Gorsuch,  go  down  towards  his 
father ;  I  said  nothing  to  him.  I  didn't  expect  to 
see  him  come  away  from  there  alive  at  that  time. 

I  jumped  over  into  the  lane  then,  threw  my 
eyes  both  ways  immediately  and  discovered  on 
the  right,  a  number  of  colored  persons,  and  on 
the  other  side,  some  whites,  but  didn't  notice 
who.  I  ran  down,  then,  through  the  long  lane, 
they  hollaring  from  behind  me,  "kill  him,"  "  kill 
him,"  and  every  one  apparently  that  could  get  a 
lick  at  me,  struck  me.  There  was  a  man  come 
riding  by  and  I  asked  him  to  let  me  get  up  be- 
hind him,  I  said  for  God's  sake  don't  let  them 
kill  me.  Shortly  after  that  I  appeared  to  receive 
a  very  severe  blow  on  the  head,  it  appeared  to  be 
very  solid.  I  had  on  one  of  those  fur  hats,  that  fit 
close  to  my  head,  it  didn't  get  knocked  off  I  be- 
lieve until  I  received  the  last  blow,  there  was  two 
handkerchiefs  in  that  hat  and  it  was  lined,  and 
if  it  hadn't  been  the  case,  I  should  not  have  been 
here  to-day ;  I  must  have  got  over  a  dozen  blows. 
I  was  struck  on  the  arms,  over  the  breast,  on  the 
head  and  down  the  back,  and  I  believe  that  after 
I  had  got  through  the  negroes  over  the  field,  I 
came  up  to  a  man,  I  have  understood  his  name 
was  Rogers,  I  saw  that  man  standing  aside  of  the 
house,  and  I  didn't  like  his  appearance  at  all ;  I 
then  retreated,  took  along  the  woods  and  some- 
wheres  near  opposite  the  lane,  I  cannot  say  which 
though,  I  don't  reccollect,  I  didn't  take  notice  at 
the  time,  I  fell  in  with  Marshal  Kline,  the  Mar- 
shal told  me — 

Mr.  Brent.  Don't  say  anything  the  Marshal 
told  you. 

Witness.  I  then  went  on  to  the  store  and 
bought  myself  a  hat. 

Mr.  Cooper.    Whose  store  ? 

Witness.  Well,  the  young  man, — let  me  see, 
I  forget, — over  along  side  of  the  lane  going  to 
Christiana  and  Penningtonville, — Dare  was  the 
young  man.,  I  got  accpiainted  with  him  there. 
I  asked  some  of  them  to  carry  me  on  to  Penning- 
tonville. There  was  a  man  standing  there,  he 
said  he  would  do  it  for  a  dollar.  I  asked  him 
how  far,  he  said  he  supposed  it  would  be  a  mile. 
I  thought  it  a  short  mile,  however. 

Mr.  Stevens.  The  man  at  the  door,  I  should 
take  him  to  be  Mr.  Kline,  I  should  think  it  was 
him  if  I  didn't  know  that  the  former  witnesses 
were  all  absent.  I  find  it  is  Mr.  Kline ;  he  has 
left. 

Witness.  He  agreed  to  take  me  for  a  dollar,  I 
gave  him  the  money  and  he  returned  it  back  and 


11 


82 


TREASON  CASES. 


said  he  would  not  take  it.  I  went  on  to  Pen- 
ningtonville  and  staid  there  for  some  time.  I 
got  in  the  cars  and  went  on  immediately  to  Co- 
lumbia. I  suppose  I  arrived  in  Columbia  that 
same  morning,  about  11  o'clock.  I  didn't  keep 
the  time,  but  I  should  judge  from  the  fact  of 
being  in  Wrights ville,  and  eating  my  dinner  there 
before  12  o'clock  ;  that  is  the  only  account  I  can 
get  of  the  time  I  arrived  in  Columbia.  Went  on  to 
York  the  same  day  and  stopped  there  with  some  of 
my  friends.  The  young  man  that  superintended 
the  cars,  I  was  very  well  acquainted  with,  he 
wanted  me  to  go  home  with  him.  I  observed  to 
Mr.  Merryman  that  I  could  carry  nothing  definite 
home  about  my  friends,  and  I  wouldn't  go  till  I 
could.  I  told  Mr.  Merryman  not  to  mention  any 
thing  to  my  friends  about  me,  I  knew  it  would 
make  them  very  uneasy.  He  did  do  so,  how- 
ever, until  it  was  reported  that  I  was  killed,  and 
then  he  wrote  them  aud  told  them  it  was  not  so, 
that  he  had  seen  me  on  to  York  about — 

Mr.  G.  L.  Ashbiead.  I  will  ask  you  a  few 
questions  now  sir.  Did  you  see  any  of  the  slaves 
of  Edward  Grorsuch,  upon  that  occasion,  that  you 
recognized  ? 

Answer.  I  did. 

Question.  Who? 

Answer.  Joshua  Hammond ;  Edward  Gorsuch 
was  then  addressing  him,  and  the  words  were 
these,  "  see,"  says  he,  "  it  is  not  worth  while  to 
go  on  that  way."  He  was  then  going  on  like  a 
savage. 

Question.  Did  you  see  any  other  slave  of  Ed- 
ward Gorsuch  upon  that  occasion  ? 

Answer.  I  saw  one,  I  took  him  to  be  Noah 
Buley.  I  could  not  swear  positively  that  it  was 
Noah  Buley.  I  knew  him  and  I  took  it  to  be 
him,  he  was  coming  along  with  a  number  of 
others. 

Question.  At  the  time  you  saw  Edward  Gor- 
such talking  to  Joshua  Hammond,  where  was  he 
Standing  ? 

Answer.  Not  noticing  particularly,  I  hardly 
know  where  they  were  standing,  and  of  course  I 
did  not  expect  to  give  an  account  of  it.  It  was 
in  the  lane,  and  immediately  after  that  he  was 
knocked  down. 

Question.  Was  that  just  before  he  was  knocked 
down  ? 

Answer.  It  was  some  few  minutes  before  that. 

Question.  Have  you  any  doubt  that  it  was 
Joshua  Hammond,  one  of  his  slaves  ? 

Answer.  About  it  being  his  slave  ?  not  a  bit 
of  doubt.  I  knew  him  and  have  no  more  doubt, 
than  a  doubt  that  I  stand  here. 

Question.  Did  you  hear  any  horns  blowing 
that  morning  ? ' 

Answer.  Several  times  blown  from  the  window. 

Question.  Did  you  hear  any  other  horns  blown 
around  the  country  ? 

Answer.  Why,  I  can't  say  I  did  or  I  did  not, 
but  it  appears  to  me  there  was  some  blown,  but 
I  didn't  notice  them  particularly,  more  than  the 
bugle  that  was  blown  before  we  got  there. 

Question.  The  horn  that  was  blown  from  the 
window,  that  was  blown  several  times,  was  that 
blown  before  the  negroes  had  assembled  ? 

Answer.  Yes,  sir,  it  appeared  to  me,  one 


party  of  the  negroes  was  formed  at  the  bars  be- 
fore the  horn  was  blown 

Question.  Can  you  give  us  any  idea  Mr.  Gor- 
such, how  many  negroes  were  inside  of  that 
house  ? 

Answer.  I  do  not  know  only  from  hearsay. 

Mr.  Ashmead.  Not  what  you  heard  said.  You 
do  not  know  then  of  your  own  knowledge  how 
many  were  in  that  house  ? 

Answer.  No,  sir. 

Mr.  Ashmead.  Mr.  Gorsuch,  about  how  many 
negroes  were  there  altogether,  upon  that  occa- 
sion, from  first  to  last  ? 

Answer.  I  didn't  see  the  number  in  the  long 
lane  until  I  were  running,  I  passed  my  eye  over 
in  a  minute,  there  appeared  to  be  a  great  many 
in  the  long  lane,  and  the  nearest  I  could  come 
to  the  number  is  a  hundred  and  fifty  or  there- 
abouts. 

Question.  How  were  the  negroes  armed  ? 

Answer.  Various  ways,  I  saw  one  with  a  stone, 
a  number  with  clubs,  and  I  believe  one  with  a 
corn  cutter  or  scythe,  or  something  to  that  effect. 
I  might  have  saw  guns,  but  I  dont  recollect  of 
seeing  guns.  I  might  have  saw  them  but  not 
noticed  them. 

Question.  Did  you  see  any  firing  at  that  time  ? 

Answer.  I  heard  no  firing,  only  the  fire  that 
was  from  the  window,  and  the  firing  after  that 
commenced,  that  murdered  Edward  Gorsuch. 

Question.  Then  you  heard  the  firing  after  they 
had  commenced  the  murder  of  Edward  Gorsuch  ? 

Answer.  Yes,  sir. 

Question.  Mr.  Gorsuch,  what  was  the  condi- 
tion of  your  mind  after  you  were  beaten  upon 
that  occasion? 

Answer.  When  I  received  the  last  blow,  I 
would  not  have  known  myself  that  my  mind  was 
injured,  had  it  not  have  been,  that  I  told  the 
Marshal  that  now  I  am  five  or  six  miles  from 
home,  and  what  road  to  go  home,  I  didn't  know, 
I  appeared  to  have  lost  all  knowledge  of  the  rail- 
road, whereabouts  it  run,  and  I  thought  I  would 
hire  a  horse  and  wagon  to  go  on  to  Baltimore, 
and  then  I  would  be  able  to  get  home  from  Balti- 
more. This  is  a  fact  will  satisfy  me,  that  I  was 
knocked  out  of  my  mind,  if  it  was  not  for  that,  I 
should  not  willingly  believe  it. 

Question.  How  near  were  you  to  Mr.  Edward 
Gorsuch  when  he  was  first  struck  ? 

Answer.  I  suppose  as  close  at  least  as  I  am  to 
Mr.  Lee. 

Question.  Did  Dickinson  Gorsuch  advance  to 
the  rescue  of  his  father  ? 

Answer.    It  was  my  opinion  he  was  going 
there,  he  didn't  tell  me  so. 

Question.  After  you  had  seen  him  advance  - 
towards  his  father,  did  you  see  anything  which 
took  place  with  regard  to  Dickinson  ? 

Answer.  The  last  time  I  saw  him  was  on  that 
occasion. 

Question.  Mr.  Gorsuch,  be  good  enough  to 
look  at  the  prisoner,  and  say,  whether  that  is  the 
man  you  saw  on  the  horse  at  the  creek  ? 

Answer.  I  did  not  notice  the  countenance  of 
the  man,  when  he  passed  me  on  horseback  the 
other  side  of  the  creek,  I  saw  the  horse  was  in  a 
gallop  if  I  recollect,  I  asked  him  if  I  might  get 


UNITED  STATES  V.  HANWAY. 


83 


up  behind,  what  the  reply  was  I  know  not,  or 
whether  there  was  any  made. 

Question.  I  have  asked  you  to  look  at  the  pri- 
soner and  say  whether  that  is  the  man  who  was 
on  the  horse  ? 

Answer.  I  didn't  notice  the  man  when  he 
passed  me  on  horseback,  but  I  know  that  a  man 
did  pass  me  in  the  lane,  on  horseback. 

Question.  "When  you  asked  the  man  to  let  you 
get  up  on  the  horse,  what  did  the  man  say  ? 

Answer.  I  didn't  understand  him  to  say  any 
thing,  there  was  a  great  deal  of  confusion. 

Question.  Were  you  fired  at  as  you  were  run- 
ning? 

Answer.  I  could  not  state  it  myself,  anymore 
than  what  others  have  told  me. 

Question.  Did  you  hear  any  conversation  at 
all  between  Mr.  Hanway  and  the  Marshal ? 

Answer.  I  was  not  close  enough  to  them  to 
hear  any  conversation. 

Question.  Did  you  hear  any  conversation  at 
all,  at  any  other  time,  that  Mr.  Hanway  had  with 
the  Marshal  ? 

Answer.  No,  sir. 

Question.  You  did  not  ? 

Answer.  No,  sir 

Mr.  Cooper.  Mr.  Gorsuch,  will  you  state 
whether  there  was  any  change  in  the  conduct  of 
the  negroes,  after  the  man  on  horseback  came 
up? 

Answer.  The  colored  people  in  the  house 
stated  they  felt  like  dying.  The  Marshal  gave 
me  an  order  to  proceed  to  the  Sheriif  for  twenty 
men :  he  did  this  just  in  a  sham  way,  to  try  to 
frighten  them.  I  observed  to  the  Marshal  that 
it  was  no  use,  it  would  only  make  them  worse  if 
we  didn't  succeed.  I  then  went  on  to  the  other 
side  of  the  race.  I  then  thought  I  heard  some 
one  call  me.  I  returned  back  with  the  expecta- 
tion that  they  had  probably  given  up.  After  the 
man  on  horseback  came  up,  they  appeared  to  be 
inspired,  and  I  thought  it  made  a  material 
change. 

Mr.  Cooper.    What  was  done? 
Answer.    They  appeared  to  rally. 
Question.     That  was  after  the  man  came 
up  ? 

Answer.    After  the  man  came  up.    Yes,  sir. 
Mr.  Brent.    After  you  returned  home,  were 
you  confined  to  your  bed  from  your  injuries? 
Answer.    Yes,  sir. 
Question.    How  long '.' 

Answer  I  didn't  take  particular  account  of 
the  time.  I  was  not  able  to  attend  to  business 
for  a  month  after  the  occurrence,  I  suppose.  I 
was  taken  worse  after  returning  home  :  my  pains 
became  more  sharp  round  the  wound  on  the 
head,  and  I  believe  I  am  severely  affected  now 
from  the  injuries  I  sustained  on  that  occasion. 

Mr.  Brent.  State  at  what  period  of  time 
you  were  taken  sick,  and  how  long  you  remained 

60. 

Answer.  I  cannot  state  this  exactly,  I  sup- 
pose some  four  or  six  weeks.  I  suffered  more 
or  less  from  the  head.  My  nervous  system  ap- 
peared to  be  very  much  impaired,  the  Doctor 
dieted  me. 

Question.     Are  you  conscious  whether  you 


i  fell,  when  you  received  the  last  blow  vou  speak 
|  of? 

Answer.  No,  sir.  I  have  been  told  that,  I 
J  was  knocked  down  several  times. 

Mr.  Brent.  That  is  no  evidence.  That  is 
;  all. 

No  cross-  examination. 
U   Mr.  Dickinson  Gorsuch  was  called  and  sworn.  - 

Mr.  G.  L.  Ashmead.  Are  you  a  son  of  the 
!  late  Edward  Gorsuch  ? 

Answer.    Yes,  sir. 

Question.  Were  you  with  your  father  on  the 
morning  of  the  11th  of  September  last,  at 
Parker's  house,  near  Christiana  ? 

Answer.    Yes,  sir. 

Question.  "When  you  went  up  to  Parker's 
house,  did  vou  hear  any  instruments  of  any 
kind? 

Answer.    I  heard  a  horn  blown. 

Question.  About  how  long  was  that  before 
you  reached  Parker's  ? 

Answer.  About  a  quarter  of  an  hour,  I  sup- 
pose. 

Question.    Will  you  be  good  enough  now  to 
commence,  and  in  your  own  way,  without  inter- 
ruption, state  to  the  Court  and  jury,  slowly  and 
distinctly,  all  that  occurred  upon  that  occasion  ? 
Answer.    As  we  came  near  the  house,  we  saw 
i  a  negro  come  out  at  the  lane ;  they  stopped, 
i  Dr.  Pierce  and  I  were  behind.    Dr.  Pierce  and 
;  I  got  over  in  the  orchard,  and  ran  across  to  the 
;  house.    My  father  got  to  the  house  before  we 
!  did.    We  went  behind  the  house.     We  stood 
'  there  at  the  house  a  few  moments,  and  heard  the 
:  negroes  up  stairs.    Dr.  Pierce  and  myself  went 
|  round  to  the  back  part  of  the  house,  to  keep  the 
1  negroes  from  getting  out  of  the  windows.  While 
I  stood  there,  I  heard  a  gun  fire.    I  went  round 
to  the  front  part  of  the  house  again.    Dr.  Pierce 
told  me  they  had  fired  at  my  father.    I  went 
round  to  the  back  part  of  the  house  again,  and 
we  guarded  it.   I  came  round  again,  and  I  got  up 
on  a  small  house  in  front  of  the  other  house,  to 
watch  around  to  see  if  I  saw  any  negroes  com- 
ing.    I  was  on  this  house,  when  one  of  the 
negroes  asked  for  time  to  consider.    The  time 
j  run  out :  they  asked  again.     About  that  time 
j  I  saw  a  man  at  the  bars  on  a  horse.    The  Mar- 
shal's attention  was  called  to  him  by  Joshua  Gor- 
such.   He  was  told  there  was  a  man  at  the  bars, 
and  to  go  and  summons  him  to  assist.    Then  they 
were  all  away  from  the  house  except  my  father 
;  and  myself;  before  this  the  negroes  seemed  as  if 
j  they  would  have  given  up.    My  father  said  to 
!  me,  they  had  better  have  gone  up  before ;  now 
they  seemed  to  be  determined.  I  went  towards  the 
j  bars ;  about  half  way  nearer  the  bars  than  the 
lane.    The  negroes  seemed  to  have  formed  into 
i  another  squad.    I  saw  the  man  on  the  horse 
|  read  the  papers,  and  then  returned  to  the  house, 
j  I  saw  the  negroes  come  out,    One  of  my  father's 
i  servants  were  there  ;  Philip  Pierce's  boy.  There 
1  were  two  that  I  recognized  ;  they  came  shouting 
|  around  me,  and  one  that  was  in  the  house  said, 
I  "  there  he  is  !  take  him  :"  that  was  Josh.  They 
were  shouting  around  me.    I  raised  my  revolver, 
j  and  told  them  if  they  touched  me  I  would  shoot 
|  them.    I  told  my  father  we  had  better  go,  for 


84 


TREASON  CASES. 


they  intended  to  murder  the  whole  of  us.  He 
said  it  would  not  do  to  give  it  up  that  way.  We 
were  at  the  house.  I  then  walked  nearer  to  the 
bars.  While  I  was  there,  one  of  the  men  passed 
me.  He  did  not  look  at  me.  Before  this,  I  saw 
him  riding  on  a  horse ;  he  had  a  gun  when  he 
came.  It  was  soon  after  this  I  saw  them  strike 
my  father.  They  struck  him  with  clubs.  I 
went  back  to  him,  as  near  as  I  could  get,  and 
put  up  my  revolver  to  shoot  at  them.  I  was 
struck  across  the  right  arm  with  a  club ;  and 
about  the  same  time,  I  was  shot  in  the  side. 
After  that,  I  started  out  of  the  long  lane,  and  I 
met  the  Marshal.  He  led  me  to  the  woods.  I 
laid  down  there  on  the  ground.  I  was  bleeding 
very  much  in  the  side  and  arm,  and  was  spitting 
blood.  I  saw  a  man  standing  there,  and  I  asked 
him  to  hold  my  head.  I  asked  him  several  times, 
as  I  felt  very  weak,  to  hold  my  head  ;  he  wouldn't 
do  it.  I  afterwards  asked  him  to  go  and  get 
me  some  water.  After  asking  him  several  times, 
he  went  and  got  me  some  water.  This  man  I 
recognized  in  the  prison  as  Mr.  Scarlett.  I  don't 
know  how  long  I  laid  there,  before  some  persons 
in  the  country  came  and  took  me  to  Mr.  Thomas 
Palmer's.  I  laid  there  three  weeks  and  one  day 
before  I  was  able  to  return  home. 

Mr.  G.  L.  Ashmead.  About  how  many  ne- 
groes were  there,  in  and  about  the  house  and  in 
the  lane  upon  that  occasion  altogether  ? 

Answer.  I  know  there  were  more  than  eighty  ; 
I  only  saw  those  that  were  in  the  short  lane. 

Question.  You  think  there  were  about  eighty, 
then  ? 

Answer.    Yes,  sir. 

Question.    Were  they  armed  ? 

Answer.  They  were  armed  with  guns,  clubs, 
revolvers,  and  swords. 

Question.  You  said  the  negroes  appeared  en- 
couraged and  confirmed  ;  what  made  them  en- 
couraged and  confirmed  ? 

Answer.  The  persons  were  looking  out  of  the 
windows,  and  they  said  there  was  some  person  at 
the  bars,  on  a  horse,  and  shouted.  I  didn't  un- 
derstand who  they  said  it  was. 

Question.  Was  it  a  white  man  or  a  black 
man  ? 

Answer.    A  white  man. 
Question.    Was  he  on  horseback  or  not. 
Answer.    He  was  on  horseback. 
Question.    Did  you  look  at  him  sufficiently  to 
identify  him? 
Answer.    I  did. 

Question.    Are  you  able  to  say  whether  the 
prisoner  is  the  man  ? 
Answer.    Yes,  sir. 
Question.    Is  he  the  man 
Answer.    Yes,  sir. 

Question.  Did  you  recognize  more  than  one  of 
the  slaves  of  your  father  there  upon  that  occasion0 
Answer.    No,  sir. 
Question.    But  one? 
Answer.    Yes,  sir. 

Mr.  G.  L.  Ashmead.  Be  good  enough  to  give 
us  their  names  ? 

Answer.  Noah  Buley  and  Joshua  Hammond. 

J udge  Grier.  Noah  was  not  there  when  you 
first  went — he  came  on  horseback  ? 


Answer.  Yes,  sir. 

Mr.  G.  L.  Ashmead.  With  a  gun. 

Question.  Had  your  father  any  arms  in  his 
hand  when  struck  ? 

Answer.  I  did  not  see  whether  he  had  or  not. 

Question.  How  far  were  you  from  him  when 
they  commenced  to  kill  him  ? 

Answer.  I  was  about  ten  feet  off,  I  suppose. 

Question.  Had  you  your  face  or  back  towards 
him? 

Answer.  I  had  my  side — I  did  not  see  them 
when  they  commenced  their  attack  on  him. 

Question.  When  you  first  saw  him  after  the 
attack  commenced,  what  were  they  doing  to  him? 

Answer.  Striking  him  over  the  head  with 
clubs. 

Question.  You  have  said  that  you  advanced 
towards  him  at  that  time — were  you  attacked, 
then,  before  you  had  reached  him  ? 

Answer.  Yes,  sir — I  could  not  get  to  him  for 
the  crowd  around  him. 

Question.  What  became  of  your  pistol  ? 

Answer.  My  pistol  was  knocked  out  of  my 
hand. 

Question.  How  many  shot  did  you  receive 
about  your  person  on  that  occasion  ? 
Answer.  About  eighty,  I  think. 
Question.  Where  ? 

Answer.  In  this  arm  (right)  and  side,  and 
here,  (in  the  thigh),  and  in  this  arm  (left). 

Judge  Grier.  You  don't  mean  different  shots 
from  different  guns,  but  that  number  of  shots 
were  put  in  you  ? 

Answer.  Yes,  sir. 

Question.  Do  you  bear  about  your  person 
now  the  marks  of  the  wounds,  on  that  occasion  ? 
Answer.  Yes,  sir. 

Question.  How  long  were  you  confined  by 
the  wounds  on  that  occasion  ? 

Answer.  I  was  there  at  Mr.  Palmer's  three 
weeks  and  one  day. 

Question.  After  you  reached  Parker's  house, 
did  you  hear  any  horns  blowing  ? 

Answer.  Yes,  sir — I  heard  them  in  the  house. 

Question.  How  often  ? 

Answer.  I  don't  recollect  how  often — but  I 
know  the  horns  blowed  for  some  time — I  don't 
know  whether  it  was  more  than  once  there. 

Question.  Did  you  hear  any  from  the  sur- 
rounding country  ? 

Answer.  Not  that  I  recollect  ? 

Question.  Did  the  horns  from  the  house  blow 
before  or  after  the  negroes  assembled  ? 

Answer.  Before. 

Examined  by  Mr.  Brent. 

Question.  Do  you  recollect  if  you  passed  any 
blood  from  your  mouth  or  lungs  ? 
Answer.    I  did. 

Question.  How  long  did  it  continue  ? 

Answer.  Till  I  got  the  water. 

Question.  Did  you  pass  any  coagulated  blood 
afterwards  ? 

Answer.  I  believe  I  did. 

Question.  Do  you  feel  any  inconvenience  from 
the  injury  yet  ? 

Answer.  "Yes,  sir,  I  have  a  pain  in  my  side-  - 
it  hurts  me  to  take  a  long  breath,  and  it  hurts 
me  very  much  to  cough. 


UNITED  STATES  V.  HANWAY. 


85 


Question.  Did  you  see  any  thing  of  Nelson 
there  ? 

Answer.  No,  sir,  I  could  not  recognize  him. 
I  saw  the  man  who  ran  to  the  house,  that  my 
father  said  was  Nelson. 

Question.  I  understood  you  to  state  that  your 
father  and  yourself  were  alone  at  the  house — the 
rest  of  the  party  haying  gone  towards  the  bars, 
in  consequence  of  a  change  in  the  conduct  of  the 
negroes,  stamping  the  floor  and  making  a  noise, 
that  your  father  made  a  remark  to  you  that  it 
was  worse  for  you  that  you  had  waited  ? 

Answer.  Yes,  sir. 

Question.  Fix,  if  you.  can  about  what  period 
that  was,  in  reference  to  Mr.  Hanway's  appear- 
ance at  the  bars. 

Answer.  It  was  after  he  had  come  to  the  bars. 

Question.  How  long  ? 

Answer.  I  dont  know  what  time  that  was. 

Question.  This  change  in  the  conduct  of  the 
colored  persons  in  the  house  took  place  shortly 
after  Hanway  came  to  the  bars — and  your  father 
made  this  remark  to  you  at  that  time  ? 

Answer.  Yes. 

Question.  Did  you  hear  any  conversation  with 
Hanway  after  that  time  ? 

Answer.  I  heard  them  talking.  I  dont  recol- 
lect what  they  said. 

No  cross-examination. 

Nicholas  Hutchings,  called  and  sworn — Exam- 
ined by  Mr.  Gr.  L.  Ashmead. 

Question.  Were  you  a  neighbor  of  the  late 
Edward  Gorsuch  in  the  State  of  Maryland  ? 

Answer.  I  was. 

Question.  DLd  you  accompany  Mr.  Edward 
Gorsuch  on  the  morning  of  the  11th  of  Septem- 
ber last  to  the  house  of  Parker  ? 

Answer.    I  did,  sir. 

Question.  On  the  way  up  and  when  you  came 
near  that  house  did  you  hear  instruments  of  any 
kind  ? 

Answer.  I  heard  a  horn  blowing. 

Question.  In  what  direction  did  the  sound 
come  as  you  went  up  :  to  your  right  or  left  ? 

Amswer.  It  came  from  the  right. 

Mr.  G.  L.  Ashmead.  Go  on  in  your  own  way 
and  state  all  that  occurred  upon  that  occasion 
from  first  to  last,  as  far  as  you  recollect  it,  when 
you  came  to  the  house. 

Witness.  When  I  came  to  the  house  Kline 
asked  for  the  landlord,  and  I  told  him  what  we 
came  there  for,  and  that  he  was  an  oflicer. 

Mr.  G.  L.  Ashmead.  You  have  said  that 
when  you  got  to  the  house  the  Marshal  and 
some  one  else  went  in  ? 

Witness.  Yes,  sir,  and  Kline  told  him  that 
he  was  an  officer,  and  came  there  to  make 
arrests.  And  Mr.  Gorsuch  told  him  he  heard  his 
slave— he  heard  his  voice,  and  said  if  he  would 
come  down  and  go  home  with  him.  he  would 
forgive  him  for  the  past.  There  was  something 
thrown  from  the  window  and  struck  Pierce. 

In  a  short  time  afterwards  there  was  a  gun 
fired  from  the  window  at  Mr.  Gorsuch :  Kline 
read  his  warrants  and  authority  two  or  three 
times.  A  short  time  after  that  there  was  a  horn 
blowed  from  the  house  :  and  they  asked  for  some 
minutes  to  consult,  and  we  allowed  them  ten 


1  minutes,  and  they  asked  for  a  longer  time  and 
we  gave  them  five  minutes. 

In  the  meantime  there  was  a  gentleman  rode 

:  up  to  the  bars  ;  the  marshal  went  to  him.  and 

|  called  on  him  to  assist ;  I  did  not  hear  his  reply. 

I  He  gave  him  his  warrants,  his  authority, to  read. 

I  I  was  some  distance  off.    I  didn't  hear  his  reply. 

j  I  saw  him  have  in  his  hand  the  warrants ;  I  saw 
him  hand  them  back  to  him;  and  a  short  time 

;  after  there  was  another  gentleman  came  up. 
The  officer  handed  them  to  him,  and  I  saw  him 
pass  them  back  again  to  Kline.  I  think  at  that 
time  there  was  some  twenty  or  thirty  negroes  came 
up.  They  were  all  armed  with  guns,  scythes, 
swords,  and  other  weapons.  Kline  called  on  us 
to  leave  the  house,  and  he  said  he  would  hold 
these  white  men  responsible  for  the  slaves.  I 
proceeded  out  into  the  long  lane  and  the  rest  fol- 
lowed me.  and  they  stopped  in  the  short  lane, 
and  I  proceeded  to  the  long  lane.  Kline  asked 
me  to  follow  one  of  these  men,  which  I  did  some 
short  distance ;  we  retured  into  the  woods,  and  I 
stopped. 

Question.    Which  man  was  that '? 
Answer.  Lewis. 

Judge  Grier.    Kline  told  you  to  follow  him  ? 

Answer.  Yes,  sir,  to  see  where  he  went. 
When  I  was  following  him,  the  negroes  rushed 
towards  the  house,  and  I  heard  a  great  firing, 
and  after  that  I  saw  them  run  Pierce  and  Gor- 
such down  the  long  lane.  Dickinson  Gorsuch 
came  up  into  the  woods  some  short  distance  from 
me,  all  bleeeing  and  suffering  very  much ;  and  I 
made  my  escape. 

Mr.  G.  L.  Ashmead.  Did  you  look  at  the 
man  at  the  bars  ? 

Answer.  I  went  towards  the  bars,  he  turned 
and  rode  past  the  platts ;  he  didn't  go  very  far. 

Question.    Did  you  or  not  see  his  face  9 

Answer.    No  sir,  I  did  not. 

Question.    Was  he  on  foot  or  on  horseback  ? 

Answer.    On  horseback. 

Question.  About  how  many  negroes  were 
there  upon  that  occasion  altogether  ? 

Answer.  One  hundred  and  fifty  I  suppose,  or 
more. 

Mr.  G.  L.  Ashmead.  You  have  already  said 
that  they  were  armed  with  guns,  clubs,  corn- 
cutters,  scythes,  etc. 

Answer.    Yes.  sir. 

Question.    Did  you  hear  a  gun  fired  out  of  the 
window  of  the  house  ? 
Answer.  Yes. 

Question.    Who  was  it  fired  at  ? 
Answer.    It  was  fired  right  over  old  Mr. 
I  Gorsuch. 

Question.  At  the  time  you  saw  the  negroes 
j  in  the  lane  standing  near  Hanway  and  the  Mar- 
shal, what  were  these  negroes  doing  ? 

Answer.    Loading  their  guns. 

Question.  Did  you  see  there  upon  that  occa- 
sion any  of  the  slaves  of  Edward  Gorsuch  ? 

Answer.    I  did,  sir. 

Question.    State  who  they  were. 

Answer.  One  called  Noah  Duley.  I  didn't  see 
any  others. 

Question.  You  feel  certain  as  to  NoahBuley  ? 
Answer.    Yes,  sir. 


86  REASON 


Question.  Where  was  it  that  you  first  saw 
Dickinson  Gorsuch  and  Kline  together  after 
Dickinson  was  wounded  ? 

Answer.    They  were  up  in  the  woods. 

Question.  You  first  saw  them  up  in  the 
woods  ? 

Answer.  Yes,  sir.  Dickinson  coming  up  into 
the  woods  and  Kline  had  hold  of  him. 

Question.  At  the  time  Hanway  came  to  the 
bars,  what  was  the  demeanor  of  the  negroes  ? 

Answer.  They  appeared  to  be  in  great 
spirits — all  of  them  hallooing  and  shouting  and 
singing. 

Question.  How  had  they  appeared  before  he 
came  to  the  bars  ? 

Answer.  They  appeared  to  be  rather  intimi- 
dated. 

Cross-examined  by  Mr.  Stevens. 

Question.  I  think  you  said  on  a  former  ex- 
amination that  you  didn't  see  the  white  men 
speaking  at  all  to  the  negroes  ? 

Answer.    No,  sir. 

Question.    You  didn't  see  them. 

Answer.    No,  sir. 

Question.  I  have  understood  you  now  to  say 
that  you  were  up  near  the  mouth  of  the  lane 
when  you  saw  Mr.  Hanway  leave  that  and  ride 
down  the  lane  ? 

Answer.    Yes,  sir. 

Nathan  Nelson,  called  and  sworn. 

Examined  by  Mr.  G.  L.  Ashmead. 

Question.  Were  you  a  neighbor  of  the  late 
Edward  Gorsuch  in  the  State  of  Maryland  ? 

Answer.  I  live  some  six  or  seven  miles  from 
there. 

Question.  Did  you  accompany  him  on  the 
morning  of  the  11th  of  September  last,  to  the 
house  of  William  Parker  near  Christiana? 

Answer.  Yes,  sir.  I  believe  that  was  the 
date  of  the  time. 

Mr.  G.  L.  Ashmead.  Now  go  on  and  state  to 
the  Court  and  Jury  all  that  occurred  on  that 
occasion,  from  first  to  last. 

Witness.  From  the  time  we  started  from 
home  ? 

Mr.  G.  L.  Ashmead.  No,  sir— from  the  time 
you  came  to  a  short  distance  from  Parker's. 

Witness.  What  first  occurred  on  the  road 
from  there— we  heard  a  bugle  blow,  some  dis- 
tance from  us  on  the  right  hand  side  of  the  road  ; 
and  on  our  way  there  we  stopped  to  take  some- 
thing to  eat,  and  when  we  came  near  the  short 
lane,  we  discovered  one  or  two  negroes  coming 
out  into  the  long  lane,  and  when  they  saw  us 
they  run,  and  we  pursued  them  to  the  house,  and 
after  we  got  to  the  house  sometime — it  was  but 
a  short  time  after  we  got  there,  there  was  a  club 
thrown  out  from  the  window  which  struck  Pierce 
over  the  eye.  It  passed  over  my  head;  There 
was  some  little  skirmishing  at  that  time— we 
dodged  round  the  corner  of  the  house.  After 
some  time  there  was  a  gun  shot  out  of  the  window 
at  Mr.  Gorsuch,  which  went  between  his  shoulder 
and  head.  And  after  that  there  was  another 
club  thrown  from  the  window,  and  there  was  a 
gun  poked  out  several  times  to  shoot  again. 
However,  before  this  the  Marshal  had  read  his 
warrant  for  the  arrest  of  the  runaways. 


CASES. 


Question.    What  took  place  then  ? 

Answer.  There  was  some  time  given  for  them 
to  consider  whether  they  should  give  themselves 
up  or  not,  and  they  agreed  on  the  time — I  don't 
recollect  how  long — five,  ten  or  fifteen  minutes. 
I  don't  recollect  the  exact  time,  and  in  the  mean- 
while I  think  there  was  a  man  rode  up — I  know 
there  was,  and  at  that  time  the  negroes  seemed 
to  rejoice  at  it,  they  made  a  jumping  and  a  great 
noise.  Not  long  afterwards  there  was  a  parcel  of 
negroes  came  down  the  lane  running  and  making 
a  great  noise,  with  guns,  clubs,  scythes,  and  part 
of  them  passed — in  the  first  place  they  formed  a 
line  in  the  lane,  and  the  man  on  horseback  was 
on  the  upper  side ;  as  well  as  I  recollect,  they 
loaded  their  guns  there  and  fixed  them.  They 
staid  there  some  time  and  after  a  while  they 
rushed  into  the  short  lane,  into  the  house.  By 
that  time  the  deputy  marshal  had  hallooed  to  us 
to  retire — he  hallooed  two  or  three  times — and 
said  he  would  hold  that  man  responsible  for  the 
property,  and  by  that  time  I  saw  the  rest  of  them 
near  the  house — the  Mr.  Gorsuches.  I  was  on 
the  lower  side  of 'the  house.  They  turned  to 
leave  the  house  and  I  made  an  attempt  to  get  with 
them  and  there  was  one  party  between,  and  the  Gor- 
suches and  another  party  at  the  bars.  When  I  got 
to  the  bars  I  saw  several,  there  might  be  fifteen  or 
twenty  with  guns  and  scythes.  This  man  was  on 
horseback,  and  a  young  man  standing  by  the  side 
of  them,  and  I  think,  if  I  recollect  right,  that  he 
said  to  me  that  we  could  not  do  any  thing.  I  said 
I  didn't  think  we  could.  I  hadn't  passed  many 
steps  up  the  lane  before  they  commenced  firing. 
After  I  got  into  the  woods  Dickinson  Gorsuch 
came  out.  I  didn't  see  anybody  with  him  at 
that  time — I  saw  Kline  going  from  him.  I  was 
looking  over  them  to  the  negroes  that  was  run- 
ning Pierce  and  Gorsuch.  I  believe  that  was 
about  the  last  I  saw  of  it. 

Question.  Did  you  see  any  slaves  of  Mr. 
Edward  Gorsuch  there  ? 

Answer.    I  saw  one. 

Question.    What  was  his  name  ? 

Answer.    His  name  was  Noah. 

Question.    Noah  what? 

Answer.    They  call  him,  Noah  Buley. 

Question.  Did  you  see  the  face  of  the  person 
on  horseback,  on  that  occasion  ? 

Answer.    I  did. 

Question.  Are  you  able  to  say  whether  the 
prisoner  at  the  bar  is  that  person  ? 

Answer.    I  take  him  to  be  the  man. 

Question.  How  long  was  it  after  Mr.  Han- 
way came  to  the  bar,  that  the  negroes  came  up  ? 

Answer.  It  was  not  a  great  while.  I  don't 
know  how  long. 

Question.  Had  you  any  conversation  with  Mr. 
Hanway  ? 

Answer.  I  said  to  him  or  he  said  to  me  rather, 
that  he  didn't  think  we  could  do  any  thing, I  said 
I  didn't  think  we  could.  Those  were  the  words 
as  well  as  I  can  recollect. 

Question.  Did  you  hear  any  conversation  be- 
tween Hanway  and  Kline  ? 

Answer.  No,  sir,  I  was  rather  too  far  off— they 
were  talking,  but  I  could  not  understand  to  dis- 
tinguish the  words. 


UNITED  STATES  V.  HAXWAY. 


87 


Question.  Did  you  hear  any  firing  upon  that 
occasion  ? 

Answer.  Certainly  I  did.  There  was  a  great 
number  of  shots. 

Question.  About  howmany  negroes  were  there 
altogether  on  that  occasion  ? 

Answer.  It  is  a  hard  matter  to  tell.  I  should 
judge  from  what  was  there  and  coming  in  the 
lane,  there  was  some  75  or  100. 

Question.  How  armed  ? 

Answer.  Yvrith  guns,  clubs,  scythes  and  swords. 
I  believe  that  was  about  all  I  seen  they  had. 

Question.  Did  you  hear  any  horns  blown  on 
that  morning  ? 

Answer.  I  did,  sir.  I  heard  a  horn  on  the 
road  as  we  were  going,  and  heard  one  blown  after 
we  were  there. 

Question.  Were  the  horns  blown  from  the 
house  or  surrounding  country  ? 

Answer.  From  both. 

Question.  Was  the  horn  from  the  house  blown 
before  or  after  the  negroes  had  assembled? 
Answer.  Before. 

Judge  Kane.  You  said  you  heard  horns  blown 
from  the  house  and  elsewhere — were  they  blow- 
ing at  the  same  time? 

Witness.  No,  sir,  not  at  the  same  time. 

Question.  Were  they  blown  after  each  other  ? 
was  there  any  connection  between  the  blowing  ? 

Answer.  The  first  I  heard  after  we  got  to  the 
house,  was  blown  from  the  house,  and  sometime 
afterwards — I  don't  recollect  the  time — I  heard 
a  horn  blowing  in  the  neighborhood.  I  thought 
it  was  an  early  hour  for  breakfast. 

Mr.  Brent.  Was  it  daylight  ? 

Answer.  It  was  after  daylight. 

Question.  How  long  after  yon  got  to  the 
house  ? 

Answer.  I  don't  recollect  how  long  it  was. 

I\Ir.  G-eor-ge  L.  Ashmead.  Did  Kline  or  not, 
hand  Mr.  Hanway  any  papers,  that  you  saw? 

Answer.  I  can't  say  that  he  did,  I  was  on  the 
lower  side  of  the  house  in  the  orchard.  The 
trees  were  between  me  and  him — I  saw  him 
talking  to  him  and  with  him. 

Gross-examined  by  Mr.  Stevens. 

Question.  You  spoke  of  a  horn  you  heard  as 
you  were  going  up — was  that  before  you  got  to 
the  mouth  of  the  long  lane  ? 

Answer.  Yes,  sir. 

Question.  How  long  were  yon  about  the  house  ? 

Answer.  I  can't  tell  that — I  don't  know  how 
long  we  were. 

Question.  An  hour  or  so  ? 

Answer.  We  were  there  an  hour  I  should 
judge,  anyhow — I  don't  know  the  time. 

Question.  Tell  us  in  what  direction  you  heard 
another  horn,  except  that  out  of  the  window  of 
the  house  ? 

Answer.  I  can't  tell  that ;  I  didn't  pay  much 
attention  to  it,  more  than  I  heard  the  blowing. 
One  I  heard  was  in  the  direction  of  the  railroad 
from  that  house. 

Question.  Up  towards  where  Mr.  Rogers 
lives  ? 

Answer.  I  don't  know  where  he  lives. 
Mr.  Stevens.  Up  the  long  lane  that  you  came 
down  ? 


Witness.  It  was  more  towards  the  direction 
of  Penninstonville.  I  think  it  was  towards  the 
railroad  from  the  house,  as  well  as  I  recollect. 

Question.  How  far  from  you  apparently,  was 
that  horn  that  vou  heard,  beside  the  one  in  the 
house  ? 

Answer.  I  can't  tell. 

Question.    Can  you  form  an  idea  ? 

Witness.    It  was  a  heavy,  foggy  morning. 

Question.    Did  you  hear  it  distinctly  ? 

Answer.  Yes,  well  enough  to  tell  it  was  a 
horn. 

Question.    Distinctly  ? 
Answer.    Yes,  sir. 

Question.  Was  it  not  after  six  o'clock  when 
j  that  took  place  ? 

I  Answer.  I  dont  know  what  time  it  was, 
|  whether  after  or  before  six. 

Question.    How  do  you  know  it  was  early 

I  breakfast  ? 

Answer.  I  thought  it  was  early  breakfast 
when  the  other  horn  was  blowing,  and  the  one 
from  the  house. 

Question.  I  have,  understood  you  to  say,  that 
when  you  went  out  the  last  time  towards  the 
mouth  of  the  lane,  that  Hanway  was  there  by 
the  bars  ? 

Answer.    He  was  out  in  the  long  lane. 
Question.    Was  he  at  the  mouth  of  the  short 
lane  ? 

Answer.  Yes. 

Question.    There  was  another-white  man  or 
boy  standing  with  him  ? 
Answer.  Yes. 

Question.  Have  you  seen  that  man  or  boy 
since? 

Answer.    Yes,  the  one  I  took  to  be  him. 

Question.    Y\'as  it  John  Bodely  ? 

Answer.  Yes,  sir;  I  saw  him  here,  and  I 
understood  that  was  his  name ;  I  saw  him  at 
Lancaster. 

Question.    When  Bodely  and  Hanway  were 
at  the  mouth  of  the  lane,  hadn't  Kline  left  ? 
j     Answer.    He  was  in  the  lane,  I  think,  just 
j  above. 

Question.    But  he  had  left  the  short  lane? 

Answer.  I  didn't  see  him  about  the  short 
lane,  but  I  recollect  of  seeing  him  and  Hutchings 
together. 

Question.  He  was  not  with  Hanway  and  this 
other  man? 

Answer.    No,  I  didn't  see  him. 

Question.  And  did  Kline  come  back  again  to 
the  mouth  of  the  lane  after  that,  before  the  firing 
commenced  ? 

Answer.    I  dont  know. 

Question.    Did  you  see  him  ? 

Answer.  Xo. 

Question.    Then  you  went  up  the  long  lane 
towards  the  woods? 
Answer.    I  did. 

Question.  Were  not  Hanway  and  Kline  ahead 
of  you? 

Answer.    They  were. 

Mr.  Stevens.  You  have  said  on  a  former  ex- 
amination, as  I  see  from  Mr.  Beigarts'  notes, 
that  when  the  firing  commenced,  Hanway  and 
Kline  were  in  or  near  the  woods. 


88 


TREASON  CASES. 


Witness.    No,  sir,  I  dont  think  I  said  that. 

Question.  Did  you  not  say,  that  when  the  firing 
commenced,  Hanway  and  Kline  were  at  or  near 
the  woods? 

Answer.  I  didn't  say  that  they  were  ;  Han- 
way and  myself,  I  said,  were  near  the  woods. 

Question.  Then  I  understand  you  now  to 
say.  that  you  have  not  heretofore  said,  that 
when  the  firing  commenced,  Hanway  and  Kline 
were  near  the  woods  ? 

Answer.    No,  sir. 

Mr.  Stevens.  You  said  on  a  former  occasion 
that  the  first  you  saw  of  Dickinson  Gorsuch  after 
that,  was  as  he  was  entering  the  woods  wounded. 

Answer,    Yes,  sir. 

Question.  And  there  was  the  first  you  saw 
Kline  with  him  after  he  was  wounded? 

Answer,  I  didn't  exactly  see  him  with  him ; 
he  was  going  from  him  in  the  woods;  it  was 
after  the  firing. 

Question.  You  didn't  see  Kline  bring  Dick- 
inson Gorsuch  up  the  lane  ? 

Answer.  No,  sir,  I  was  looking  over  him  at 
the  negroes  running. 

Question.    You  didn't  see  that  fact. 

Answer.    No,  sir. 

Question.  Which  way  did  you  go  after  the 
firing,  and  after  you  were  in  the  woods  ? 

Answer,  Towards  Penningtonville,  up  into 
the  woods,  and  then  took  to  the  left  down  to- 
wards Penningtonville,  when  I  got  into  the 
woods. 

Question.    Did  you  see  Mr.  Lewis  at  all? 
Answer,    No,  sir,  I  dont  recollect  of  seeing 
him  at  all. 

Question.  Then,  at  the  time  Mr.  Hanway 
was  reading  the  warrant,  you  didn't  see  Mr. 
Lewis  there? 

Answer.    No,  sir. 

Question.  Do  you  know  which  went  away 
first  from  the  mouth  of  the  lane,  Hanway,  or  the 
white  man  standing  with  him  when  you  went  up 
there  ? 

Answer.    I  do  not. 

Question.    Didn't  you  see  them  go  away? 
Answer.    No,  sir  ;  I  left  them  standing  there. 
Question,    Looking  down  the  short  lane? 
Answer.    I  dont  know  which  way  they  were 
looking  ? 

Question.  Dont  you  know  which  way  Han- 
way was  looking? 

Answer.    No,  sir. 
-  Miller  Nott  called.  . 

Witness.    I  affirm. 

Clerk.  Have  you  conscientious  scruples  to 
taking  an  oath? 

Witness.    I  don't  know  that  I  have. 

Clerk.    Then  you  will  please  to  swear. 

Sworn  by  the  uplifted  hand. 

Examined  by  Mr.  George  L.  Ashmead, 

Question.    Where  do  you  reside? 

Answer.  In  Sadsbury  township,  Lancaster 
county. 

Question.    How  long  have  you  resided  there  ? 
Answer.    Ten  years  last  spring,  I  think. 
Question.    How  far  from  Christiana? 
Answer.    About  two  miles,  I  suppose. 
Question.    Do  you  recollect  the  occurrences 


of  the  morning  of  September  11th  last,  tit  the 
time  Mr.  Gorsuch  was  killed? 

Answer.    Yes,  sir,  I  recollect  it. 

Question.  Did  you  visit-  the  battle  ground 
upon  that  morning? 

AnswER.    Yes,  sir,  I  did. 

Question.  How  long  after  the  occurrences  of 
that  morning  was  it  before  you  reached  the 
ground  ? 

Answer.  Some  few  minutes  after  the  firing, 
before  I  got  down  on  the  ground? 

Question.    Was  Mr.  Gorsuch  then  dead? 

Answer.    No,  sir,  he  was  not  quite  dead. 

Question.  I  do  not  ask  you  as  to  names,  but 
I  ask  you  as  to  number — about  how  many  colored 
people  did  you  see  there  upon  that  occasion? 

Answer.  I  concluded  there  was  between 
seventy-five  and  a  hundred,  was  my  opinion. 

Question.    Were  they  armed? 

Answer.    A  quantity  of  them  were. 

Question.  Did  you  hear  anv  firing  upon  that 
ground  ? 

Answer.  Yes,  sir,  there  was  a  good  deal  of 
firing. 

Question.  How  far  ofi°  were  you  from  Park- 
er's house  when  you  first  heard  the  firing? 

Answer.  I  suppose  I  was  about  two  hundred 
yards,  when  the    firing    commenced.  - 

Question.  Did  you  see  a  white  man  by  the 
name  of  Scarlett  there  ? 

Answer.    I  saw  Joseph  Scarlett  there. 

Question.    Did  you  know  him  ? 

Answer.    Yes,  sir. 

Question.    How  long  had  you  known  him . 

Answer.  I  have  known  him  for  six  or  seven 
years,  and  probably  longer. 

Question.  How  far  does  Scarlett  live  from 
there  ? 

Answer.    About  a  mile  and  a  half,  I  expect. 

Question.  Was  he  on  horseback  ? 
Answer.  Yes,  sir. 

Question.    Was  his  horse  sweating  or  not? 

Mr.  Stevens.  This  is  not  a  proper  mode  of 
examination. 

Mr.  Read.  Would  it  not  be  a  great  deal  bet- 
ter to  let  this  witness  go  on  and  tell  what  he 
knows  ? 

Mr.  G.  L.  Ashmead.  If  the  other  side  are  to 
direct  the  United  States  how  to  proceed  and  how 
to  examine  our  witnesses,  then  they  are  right 
in  this. 

Mr.  Read.  When  the  witness  is  put  upon  the 
stand,  he  belongs  to  the  whole  case  and  not  to  the 
United  States,  and  he  is  bound  to  swear  the 
whole  truth  and  nothing  but  the  truth.  The 
usual  and  proper  method  is  to  let  the  witness  tell 
his  own  story  and  not  to  strike  out  what  parts 
may  be  useful  to  the  defence. 

Judge  Grier.  The  usual  plan  is  for  him  to 
narrate  all  that  he  saw,  and  if  he  omit  anything 
to  ask  him  the  question. 

Mr.  G.  L.  Ashmead.  We  have  finished  the  ex- 
amination of  the  witness  and  hand  him  over  for 
cross-examination. 

Mr.  Stevens.  Well!  If  they  turn  him  over 
to  lis  we  will  turn  him  out ;  we  have  nothing  to 
say. 

Judge  Grier.    I  wish  to  ask  the  witness  a 


UNITED  STATES  V.  HANWAY. 


89 


question  for  my  own  information.    You  say  yon  : 
weut  there  and  found  Mr.  Gorsuch  dying,  what 
did  you  do  ?  who  removed  him  ?  or  what  was  him 
done  for  him  ?  and  what  further  do  you  know  •    Answer.  EHine. 


Witness.  When  he  was  first  taken  out  ? 
M?..  G.  L.  Ash::ead.  At  tie  ti:_e  t;-j.  frst  saw 


Wetness.  Does  the  Court  wish  me  to  tell  what 
I  know  about  him  "?  what  was  done  with  him ': 
Judge  Geiee.  Yes, 

"Witness.  We  removed  Turn  from  there,  after 
there  was  a  jury  fixed,  to  Ckrisulana. 

Question.  When  you  found  him  there  you 
remained  to  assist ! 

Answer.  Not  all  the  time.  I  helped  to  get 
Dickinson  Gorsuch  in  a  house,  and  then  imnie- 
diatelv  returned  there,  and  was  with  him  when 
he  was  put  in  the  wagon,  and  followed  shori-v  t : 
Christiana. 

Question.  Who  assisted  to  take  him  to  Chris- 
tiana ? 

Answer.  A  quantity  of  the  neighbors.  I 
can't  recollect  how  many  people. 

Me.  Brent.  The  inquest  was  held  at  Chris- 
tiana ? 

Answer.    Yes.  sir. 

Question.  After  you  arrived  there,  were  there 
any  large  parties  of  negroes  about  in  the  neigh- 
borhood? 

Answer.    No.  they  scattered  very  soon. 
Cross-examined  by  Mr.  Stevens. 
Question.    You  lived  down  towards  Penning- 
ville  from  Parker's  I 
Answer.  Yes. 

Question.  Did  you  that  morning  hear  any 
horn  blow  in  that  direction? 

Ays  web.    I  didn't  hear  any  horn — not  myself. 

John  Nott  sworn.    (A  boy. ) 

Examined  by  Mr.  G.  L.  Ashmead. 

Question.  Do  you  recollect  the  battle  on  the 
morning  of  the  11th  of  September  last  ? 

Answer.    Yes.  sir. 

Question.    What  time  was  it  that 
commenced '.' 

About  sun-up. 

Was  there  much  firing '? 
Yes.  sir. 

Where  did  you  see  the  battle  from  ? 
From  the  road  above  the  house. 

Whose  house  2 
Above  Parker's  house. 

How  far  on7  were  you  ? 
About  sixty  or  seventy  yards. 
About  how  many  colored  persons 
in  number  did  you  see  there  upon  that  occasion": 
Answer.    About  a  hundred. 
Question.    Did  you  see  a  young  man  who  was 
wounded,  there  ? 
Answer.    Yes.  sir. 

Question.  Where  was  that  young  man  when 
you  first  saw  him  ? 

Answer.    Up  by  a  big  oak  tree. 

Question.  How  far  was  that  from  the  mouth 
of  the  short  lane  ? 

Answer.    Between  forty  and  fifty  yards. 

Question.  Was  it  on  the  opposite  side  of  the 
long  lane,  from  the  mouth  ? 

Answer.    Yes.  sir. 

Question.  Who  was  with  that  young  man 
when  vou  saw  him? 


Answer. 

Question. 

Answer. 

Question. 

Answer. 

Question. 

Answer. 

Question. 

Answer. 

Question. 


Question.  What  was  Kline  doing  with  him  ? 
Answer.  He  brought  him  out  and  set  him 
i  down. 

Cross-examined  by  Mr.  Stevens. 
Question.  Was  he  not  above  the  road  that 
leads  from  Penningtonville  up  to  the  mill,  in  the 
woods  when  you  first  saw  him  ? 

Answer.  Yes  sir,  on  the  upper  side. 
Question.  The  upper  side  of  that  road  ? 
Answer.  Yes.  sir. 

Question.  Opposite  the  mouth  of  the  long  lane  ? 
Answer.  Yes.  sir. 

Question.  There  was  where  you  first  saw  him  ? 
Answer.  Yes.  sir. 
Pie-examined  by  Mr.  Brent. 
Question.  How  far  was  that  from  the  mouth 
of  the  small  lane  '? 

Answer.  About  forty  cr  fifty  yards. 
Question.  You  were  standing  there  when  you 
1  saw  the  wounded  man  come  up  ? 

Answer.    No,  sir  ;  I  was  star. ling  rlgkt  a:  :~e 
\  the  house 

Question.    Did  you  see  him  as  he  came  out 
I  of  the  short  lane  ? 

Answer.    Ho.  out  of  the  long  lane. 
Que s iion.    Not  out  of  the  short  lane  ? 
Answer.    No,  sir. 

Question.    Could  you  command  a  full  view  of 
;  the  long  lane  where  you  stood  ? 

Answer.    No,  sir. 
;     Mr.  Stevens.    It  is  proper  to  say  that  the 
actual  distance  from  the  mouth  of  the  small  lane 
;  to  the  end  of  the  long  lane  is  seventy-one  yards. 
Mr.  G.  L.  Ashmead.    There  are  a  number  of 
?  of  witnesses  to  be  examined  who  are  not  here ; 

and  as  it  is  near  the  hour  of  adjournment,  I 
the  filing  j  would  suggest  to  the  Court  whether  we  had  not 
better  stop  at  this  point.    I  didnt  send  for  them 
!  from  the  Debtors  Apartment,  supj  :  sing  the  wit- 
I  nesses  we  had  would  take  all  the  time  ;  but  we 
have  gone  through  the  examination  very  fast 
this  morning. 

Court  adjourned  until  Mondav.  at  10  o'clock, 
A.  M. 


Philadelphia,  Monday.  December  1st,  1551 
Court  was  opened  at  10  o'clocx. 
PRESENT,  JUDGES  GrBXEB  AND  KANE. 

George  G.  Leiper  and  Franklin  Yanzant, 
jurors,  who  had  been  excused  until  this  morn- 
ing, were  called  and  answered,  and  were  further 
excused  until  Monday,  December  5th. 

Samuel  Bell,  Simon  Cameron  and  Samuel  E. 
Stokes,  were  also  called,  and  did  not  answer, 
they  were  also  further  excused  until  Monday 
next. 

The  Clerk  announced  that  the  following  bills 
of  indictment  had  been  remitted  from  the  Dis- 
trict Court. 

No.  1.  against  Castner  Hanway,  Elijah  Lewis, 
and  Joseph  Scarlet.  Traason, 


12 


90 


TREASON  CASES. 


No.  2,  against  Jacob  Townsend.  Treason. 
No.  3,  against  George  Williams,  Jacob  Moore, 
George  Reed,  Benjamin  Johnson,  Daniel  Cauls- 
berry,  Alsen  Pernsley,  William  Brown,  second, 
Castner  Hanway,  Henry  Green,  Elijah  Clark, 
John  Holliday,  Willian  Williams,  Benjamin  Pen- 
dergrast,  John  Morgan,  Ezekiel  Thompson,  Tho- 
mas Butler,  Collister  Wilson,  John  Jackson,  Eli- 
jah Lewis,  Joseph  Scarlet,  William  Brown,  Isaiah 
Clarkson,  Henry  Sims,  Charles  Hunter,  Lewis 
Gales,  Peter  Woods,  Lewis  Clarkson,  Nelson 
Carter,  William  Parker,  James  Jackson,  John 
Berry,  William  Berry,  Samuel  Williams,  Joshua 
Hammond,  Henry  Curtis,  Washington  Williams, 
William  Thomas,  Nelson  Ford,  JNoah  Buley, 
Geo.  Hammond,  and  Jacob  Townsend.  Treason. 

These  bills  are  to  the  next  term,  and  will  come 
on  for  trial  at  the  April  Sessions,  1852. 

Mr.  Lewis.  Mr.  Abraham  R.  Mcllvaine  is 
among  the  list  of  jurors  that  are  returned  for 
the  present  term,  he  says  he  never  had  any  no- 
tice of  it.  He  is  not  disposed  to  shrink  from  the 
performance  of  any  public  duty.  He  is  now 
confined  to  the  house  by  a  severe  cold,  and  says 
he  will  be  in  attendance  as  soon  as  he  recovers. 

Judge  Grier.  Under  such  circumstances  the 
fine  will  be  remitted,  and  we  shall  be  glad  to  see 
him  when  he  gets  better. 

Mr.  D.  P.  Brown.  I  have  a  suggestion  to 
make  to  the  Court,  though  it  is  not  immediately 
connected  with  the  issue  now  on  trial,  but '  still 
connected  with  one  of  the  parties  charged.  There 
is  a  prisoner,  (a  very  humble  man  to  be  sure,) 
but  with  the  same  rights  as  any  other  man,  as 
your  honor  says,  who  is  in  confinement.  He  is 
now  in  a  very  perilous  condition,  and  is  circum- 
scribed as  regards  every  matter  that  is  concerned 
as  far  as  aid  and  comfort.  I  ask,  may  it  please  the 
Court,  that  you  will  give  the  Marshal  such  instruc- 
tions as  will  have  a  tendency  to  alleviate  his  con- 
dition. It  is  not  very  certain  he  will  last  over 
his  trial  here,  he  will  appear  before  another 
Judge,  and  I  hope  the  Court  will  give  the  Mar- 
shal such  instructions  as  will  comport  with  the 
cause  of  humanity  in  this  instance. 

Judge  Grier.  We  will  do  anything  in  our 
power  to  alleviate  his  suffering. 

Judge  Kane.    What  is  the  name  of  the  person  ? 

Mr.  D.  P.  Brown.    Collister  Wilson. 

Judge  Kane.  It  was  said  on  Saturday,  when 
the  prisoners  were  in  attendance  under  a  writ  of 
Habeas  Corpus  (ad  testificandum,)  there  were 
two  who  were  sick,  are  you  aware  of  there  being 
more  than  one  ? 

Mr.  D.  P.  Brown.  I  am  not  aware  of  there 
being  more  than  one — but,  I  have  no  doubt  there 
are  others  so  situated,  I  will  ask  your  Honors 
that  the  order  shall  be  extended  to  all.  Jacob 
Moore  is  also  I  understand  one. 

Judge  Kane.  Mr.  Brown,  would  not  the  better 
plan  be  to  have  the  persons  placed  in  the  hospital 
who  are  in  such  a  condition. 

Mr.  D .  P.  Brown.  A  great  deal  better ;  there 
is  no  danger  in  the  world  about  that.  I  have  full 
dependence  in  all  the  officers.  It  was  only  to 
bring  i±  before  the  notice  of  the  Court  I  mentioned 
it. 

Miller  Nott,  is  recalled. 


Mr.  Brent.    State  what  induced  you  to  go  to 
Parker's. 

Answer.  I  was  aroused  by  some  sharp  hal- 
looing. 

Question.    What  else? 

Answer.  I  started  for  a  moment.  My  little 
boy  started  and  ran  in  that  direction  so  far  that 
I  could  not  call  him  back.  That  is  what  took  me 
there. 

Question.    How  far  did  you  live  from  there  ? 
Answer.  I  suppose  six  or  eight  hundred  steps 
or  yards. 

Question.    What  time  of  day  was  it? 

Answer.  It  was  a  little  after  sun-up.  I  did 
not  look  at  the  clock.  I  was  reading  the  news 
at  the  time. 

Question.  Did  you  see  a  man  on  horseback 
whose  back  was  turned  towards  you  when  you 
first  arrived  ? 

Answer.    I  saw  a  man  riding  away. 

Question.    His  back  was  turned. 

Answer.    Yes,  sir. 

Question.    Could  you  identify  who  it  was? 

Answer.  It  was  a  man  who  had  no  coat  on,  or 
if  he  had  it  was  a  light  colored  coat. 

Question.    In  what  direction  was  he  riding  ? 

Answer.    Towards  the  North. 

Question.  Did  you  see  any  negroes  in  that 
direction  ? 

Answer.    Yes,  sir. 

Question.  Were  they  in  front  or  behind  this 
man? 

Answer.    Behind  him. 
Question.    He  was  in  advance. 
Answer.    Yes,  sir. 

Question.  Did  you  see  any  white  men  in  that 
lane  on  foot  ? 

Answer.  No,  sir,  I  did  not  see  any  white  men 
at  that  time. 

Question.  Were  you  so  situated  and  paid 
such  attention  to  it,  that  you  could  undertake  to 
say  there  were  not  white  men  in  the  lane  at  that 
time? 

Answer.  No,  sir,  I  was  a  great  distance  off 
from  them  so  that  I  could  not  say  particularly. 

Question.  How  many  negroes  were  in  the 
long  lane  behind  the  man  on  horseback? 

Answer.  They  come  rather  scattered  along 
the  long  lane. 

Question.  How  many  were  between  you  and 
the  man  on  horseback  ? 

Answer.  I  suppose  there  was  50.  That'is  my 
opinion. 

Question.  Did  any  of  them  return  towards 
you  ? 

Answer.  Yes,  there  was  a  good  quantity  of 
them  came  back  and  about  10  or  15  advanced 
towards  Dickers  on  Gorsuch. 

Question.  State  what  happened  with  regard 
to  Dickerson,  all  in  your  own  way.  State  the 
whole  thing. 

Answer.  There  was  an  old  colored  man 
came  along  the  road  where  I  was  standing.  He 
was  the  first  man  I  spoke  to  after  I  got  there. 
His  name  was  Isaiah  Clarkson.  I  said  to  him, 
what  have  you  been  doing  this  morning  ?  He  said 
he  had  not  been  doing  any  thing.  He  said  he 
hadn't  heard  the  horns  blow. 


UNITED  STATES  V.  HANWAY. 


91 


I  told  him  I  did  not  hear  any  horns.  He  then 
■was  passing  towards  his  own  house.  He  lived 
close  by  there.  I  told  him  stop  till  we  see  a  little 
further  about  this.  He  turned  and  went  back 
with  me  pretty  close  to  Dickerson  Gorsuch, 
within  a  few  yards  of  him.  About  that  time 
these  twelve  or  fifteen  men  were  coming  up  the 
lane.  They  were  coming  on  him  in  a  rage  like 
manner.  I  told  the  old  black  man,  "they  will 
kill  him,  save  him,  save  him."  He  did  not  pay 
attention  to  that,  and  I  instantly  told  him  to 
save  him.  Says  I,  "save  him  or  mind  what  is 
before  you."  Then  he  went  and  thro  wed  up  his 
arms,  and  they  went  into  the  corn-field,  across 
the  fence.  They  said  they  would  search  the 
corn-field  and  went  over. 

Question.  Do  you  know  what  they  were 
searching  for  ? 

Answer.  They  did  not  say  what,  I  don't  know 
what  it  was.  Some  one  said  they  would  as  soon 
die  then  as  live.    I  don't  know  who  it  was. 

Question.  Where  did  they  go  then  ? 

Answer.  They  went  through  the  corn-field, 
and  then  to  the  house. 

Question.  Parker's  house  ? 

Answer.  Yes,  sir. 

Question.  What  was  done  then  ? 

Answer.  They  were  called  to  order. 

Question.  By  whom  ? 

Answer.  Called  to  order  by  Isaiah  Clarkson. 
Question.  What  then  ? 

Answer.  They  became  very  quiet,  you  would 
not  have  known  there  was  anybody  there. 

Question.  You  speak  of  the  twelve  or  fifteen? 

Answer.  Yes,  sir.  The  principal  part  of  them. 
There  might  have  been  some  outside. 

Judge  Kane.  You  said  he  called  them  to  order  ? 

Answer.  Yes,  sir. 

Judge  Kane.  What  did  he  call  out.  What 
did  he  do  ? 

Answer.  He  got  up  on  something  a  little 
higher  than  they  were.  He  took  his  hat  in  his 
hand  and  waved  it  round  and  called  "  Order, 
men."  They  were  still  making  a  noise,  and  when 
he  had  come  down  to  the  third  order,  they  were 
entirely  quiet. 

Mr.  Brent.  When  you  first  saw  old  Mr.  Gor- 
such, describe  to  the  jury  where  he  was  lying. 
The  manner  as  near  as  you  can,  and  whether 
there  was  any  body  with  him,  at  that  time  ? 

Answer.  At  the  time  I  saw  him,  it  was  at  the 
time  they  were  passing  "over  the  corn-field. 
There  was  not  any  body  with  him. 

Question.  In  what  position  was  he  lying  with 
reference  to  the  bars  and  the  house  ? 

Answer.  He  was  lying  about  forty-nine  steps 
from  the  house. 

Question.  How  far  from  the  bars  ? 

Answer.  It  was  not  far.  It  was  nearer  the 
bars  than  the  house.  He  was  not  quite  dead 
then  when  I  went  up  to  him,  and  they  did  not 
offer  to  move  him. 

Question.  State  when  you  saw  Mr.  Scarlet 
first  on  that  morning,  and  what  he  was  doing 
when  you  first  saw  him  ? 

Answer.  I  saw  Mr.  Scarlet  riding  in  the  lane, 
but  I  am  not  able  to  say.  It  was  about  the 
mouth  of  the  long  lane. 


i  Question.  What  was  the  condition  of .  his 
j  horse  ? 

Answer.  His  horse,  it  was  a  little  sweaty.  It 
might  be  after  the  black  men  came  up,  or  after 
:  the  return  to  the  house  that  he  rode  in  there. 

Question.    Which  way  did  he  go  ? 

Answer.  He  rode  down  the  lane  to  Parker's 
!  house;  he  rode  out  after  awhile. 

Question.    What  distance  do  you  suppose,  by 
I  the  road,  a  man  would  have  to  go  from  Hanway's 
|  mill  to  Parker's  house  by  the  road  ? 
j  t    Answer.    I  dont  think  it  would  be  quite  two 
miles. 

Question.  By  the  road  from  Hanway's  I 
mean. 

j  Answer.  I  was  thinking  about  Mr.  Scarlett. 
It  would  not  be  quite  a  mile. 

Question.  The  way  you  would  have  to  come 
on  horseback,  it  was  about  that  distance  ? 

Answer.    Yes,  sir. 

Question.  How  would  it  be  across  the  field, 
nearer  ? 

Answer.    Some  little  nearer,  not  a  great  deal. 
Question.  It  would  not  be  quite  a  mile  by  the 
road? 

Answer.    Not  quite. 

Question.    You  heard  no  horns  blow,  I  think 
you  say,  if  I  understand  you  ? 
Answer.    I  did  not. 

Question.  You  heard  a  shout,  which  induced 
you  and  your  son  to  go,  and  when  you  got  there 
the  firing  was  over  ? 

Answer,    Yes,  sir. 

Question.  What  distance  did  Elijah  Lewis 
live  from  there  ? 

Answer.  It  would  not  be  quite  two  miles ; 
one  mile  and  a  half,  or  a  little  further. 

Question.    It  is  further  than  Hanway's? 

Answer.    Yes,  sir. 

Question.    And  Scarlett,  how  far? 

Answer.  He  lives  the  same  place  that  Mr. 
Lewis  does. 

Mr.  Asediead.  You  spoke  of  a  man  on  horse- 
back, did  you  recognize  what  color  the  horse 
was? 

Answer.    I  could  not  identify  it. 

Mr.  Read.    Where  were  you  stationed? 

Answer.  Not  quite  opposite  the  house  ;  be- 
tween the  houses  where  Dickinson  Gorsuch  laid 
and  the  road  above. 

Question.    Not  on  the  long  lane  ? 

Answer.  Near  an  apple  tree  within  a  piece 
of  the  long  lane. 

Question.  You  were  on  the  road  parallel  to 
the  Valley  road,  and  that  runs  round  by  your 
house  ? 

Answer.  Yes,  sir.  (Looking  on  the  map.) 
Here  is  where  I  stood,  opposite  to  Parker's 
house,  then  I  walked  nearer  the  end  of  the  lane. 

John  Nott  is  recalled. 

Mr.  Brent.  How  much  did  you  get  to  this 
house  before  your  father  ? 

Answer.    About  ten  minutes. 

Question.  Where  did  you  take  your  position 
when  you  got  there  ? 

Answer,    LTp  aside  the  road,  along  the  fence, 

Question.    How  far  from  the  small  lane  ? 

Answer.    About  thirty  yards. 


92 


TREASON  CASES. 


Question.    Could  you  see  Parker's  house  ? 
Answer.    Yes,  sir. 

Question.  State  what  they  were  doing  when 
you  first  arrived  ? 

Answer.  They  broke  out  of  the  house  and 
came  up  a  little  further.  They  came  out  and 
commenced  a  terrible  shouting  and  battering 
with  clubs,  and  then  they  dispersed  up  the  little 
lane,  and  run  up  towards  the  creek,  and  shot 
at  one  time  there,  at  a  tremendous  rate. 

Question.  Did  you  see  how  many  were  out- 
side the  house,  before  they  broke  out  ? 

Answer.    Yes,  sir. 

Question.    How  many  do  you  suppose  ? 

Answer.    I  suppose  about  sixty  or  seventy. 

Question.    Where  were  they  stationed  ? 

Answer.  Some  in  the  mouth  of  the  little 
lane,  and  some  a  little  further  up,  and  some  in 
by  the  bars,  they  were  put  altogether. 

Question.  Did  you  see  any  of  the  white  gen- 
tlemen running  ? 

Answer.  No,  sir.  I  did  not  see  none  but 
Kline  and  Dickerson.  They  are  the  only  two  I 
saw  running. 

Question.  You  saw  the  negroes  running  up 
the  long  lane,  at  a  terrible  rate. 

Answer.    Yes,  sir. 

Question.    You  did  not  see  any  of  the  white 
men  they  were  shooting  at  ? 
Answer.    No,  sir. 

Question.  State  whether  you  saw  any  negroes 
come  to  the  ground  on  horseback  or  mounted  on 
horses  ? 

Ansaver.    No,  sir. 

Question.    Did  you  see  any  horses  there  ? 

Answer.  I  saw  three  or  four  as  I  looked 
down  the  lane. 

Question.    Where  were  they  ?. 

Answer.    Hitched  along  the  fence. 

Question.  You  did  not  see  them  when  they 
eame  ;  they  were  just  hitched  there  ? 

Answer.    No,  sir. 

Question.  Did  you  know  any  of  the  horses 
hitched  there  ? 

Answer.    No,  sir.    I  did'nt  take  notice. 

Question.  Did  you  know  any  of  the  negroes 
of  Mr.  Gorsuch,  (or  said  to  be.)  Did  you  know 
them  by  name  ? 

Answer.  Yes,  sir.  I  saw  one  1  knew,  his 
name  was  John  Beer. 

Question.  Did  you  know  what  his  true  name 
was  ? 

Answer.    No,  sir 

Question.  When  did  you  see  him  last  ? 
Answer.    I  hadn't  seen  him  a  good  while 
before. 

Question.    Did  you  see  him  there  that  day  ? 
Answer.  No,  sir. 

Question.  Where  did  you  see  him? 
Answer.    At  the  brick  mills,  some  time  be- 
fore. 

Question.    Whose  mill  is  that? 
Answer.    Castner  Hanway's  mill. 
Question.    How  long  was  that  before? 
Answer.    About  two  months  before. 
Question.    Was  he  working  there  ? 
Answer.    No,  sir,  he  was  passing  by. 
Question.    Did  he  stop  there  ? 


Answer.  No,  sir,  I  was  going  up  and  he  was 
coming  down. 

Question.  He  just  walked  on? 
Answer.    Yes,  sir. 

Question.  Do  you  know  of  any  negroes  who 
were  in  that  fight,  being  seen  about  that  neigh- 
borhood the  next  day  ? 

Answer.    I  didn't  see,  I  heard  of  some. 

Question.    You  didn't  see  any  yourself,  then  ? 

Answer.    No,  sir. 

Question.  Did  you  notice  the  condition  of 
Dickinson  Gorsuch  ?  And  if  so,  state  what  took 
place  with  regard  to  him,  when  you  first  saw 
him? 

Answer.  He  was  bleeding. very  much  when  I 
first  saw  him,  and  he  was  moved  about  five  feet 
from  the  place  where  he  was  first  set  clown. 

Question.    How  did  he  get  there  ? 

Answer.  He  rolled  there ;  after  I  went  out  I 
took  him  water,  and  when  I  came  back  he  was 
moved. 

Question.  What  took  place  before  you  went  to 
get  the  umbrella  and  water,  did  you  see  any  ne- 
groes come  up  ? 

Answer.  Yes,  sir. 

Question.  What  did  they  do  ? 

Answer.  I  saw  them .  coining  up  with  corn- 
cutters,  guns  and  scythes-;  they  were  talking  at 
a  tremendous  rate  ;  my  father  and  an  old  colored 
man  was  standing  by,  he  says  to  the  old  colored 
man,  ''they  will  kill  that  man:"  he  didn't  say  a 
word.  He  says  again,  "  they  will  kill  that  man," 
and  he  didn't  say  anything  that  time. 

Mr.  Brent.    What  he  did  he  mean  ? 

Judge  Grier.  Perhaps  he  used  the  word  he 
for  they. 

Mr.  Brent.  I  want  to  know  what  he,  he 
meant.    Who  said  stop  him  ? 

Witness.  My  father  told  old  Isaac  Clarkson 
to  stop  them,  he  held  his  arms  up  and  then  they 
went  off.  Then  they  got  over  in  the  corn-field 
and  one  says,  "Come  on,"  I  would  as  soon  die  now 
as  live.  I  think  it  was  George  Thompson.  He 
went  round  down  by  the  house,  and  Isaac  Clark- 
son  went  down  to  the  house,  and  called  the  men 
to  order,  I  didn't  see  them  going  away,  I  didn't 
take  notice. 

Mr.  Brent.  You  say  your  father  said  to 
Isaac  Clarkson  that  he  would  kill  him.  I  want 
to  know  who  he  meant  would  kill  him  ? 

Answer.    These  black  men. 

Mr.  Bead.    I  object  to  that. 

Mr.  Brent.  I  insist  upon  my  right  to  ask 
him  this. 

Mr.  Bead.  This  witness  and  Miller  Nott  have 
been  brought  up  twice  by  the  United  States,  and 
now  John  is  asked  a  series  of  questions  which 
are  not  only  an  examination-in-chief,  but  a  cross- 
examination  ;  and  I  think  this  exceedingly  irre- 
gular in  a  criminal  case  involving  the  life  of  the 
prisoner. 

Mr.  Brent.  I  can  only  say  in  regard  to  these 
facts  that  I  was  not  aware  what  the  witnesses 
could  prove  yesterday.  We  determined  on  con- 
sultation to  re-examine  both  of  these  witnesses. 
There  is  no  irregularity  in  re-examining  a  wit- 
ness in  chief,  it  is  every  day's  practice  in  our 
Courts.   This  has  not  assumed  the  form  of  cross- 


UNITED  STATES  V.  HANWAY. 


93 


examination,  not  a  leading  question  has  been 
asked  ;  if  there  has,  it  was  the  duty  of  the  other 
side  to  have  stopped  it.  This  witness  said  that  his 
father  had  said  to  Isa^ic  Clarkson  as  these  negroes 
advanced,  "he  would  kill  him."  I  desire  the 
witness  to  explain  who  his  father  meant,  if  he 
knows.  The  witness  has  in  fact  given  the 
answer. 

Judge  (trier.  Of  course,  the  witness  could 
generally  only  state  what  was  said  and  what 
done.  A  person  in  using  a  phrase  that  would  be 
vague  may  make  it  particular  by  a  gesture,  and 
the  witness  might  tell  who  he  addressed  when  he 
used  the  word  "he,"  but  he  cannot  tell  what  he 
meant,  if  he  has  told  all  he  said  and  did. 

Mr.  Head.  That  is  my  real  objection;  he 
cannot  tell  what  his  father  meant,  but  what  he 
did  and  said. 

Judge  Grier.  I  suppose  the  boy  made  a  mis- 
take, and  used  he  for  they 

Mr.  Brent.  That  was  what  he  said  in  his 
answer. 

Mr.  Read.  A  great  many  persons  talk  with- 
out regard  to  the  singular  or  plural ;  we  want 
exactly  what  they  said. 

Judge  Grier.  The  difficulty  comes  from  many 
witnesses  stating  a  thing  historically  and  not 
dramatically.  Which  were  the  words  used  by 
your  father,  he  would,  you  would,  or  they  would? 

Answer.    They  will  kill  him. 

Judge  Grier.  There  is  often  a  confusion  of 
persons  arises  in  a  much  older  witness  than 
this,  in  narrating  facts  ;  and  generally  a  boy  of 
his  age  will  give  better  testimony  than  a  grown 
man. 

Mr.  Brent.  Did  you  see  any  one  on  horse- 
back riding  up  the  lane  ? 

Answer.    Yes,  Castner  Hanway. 

Question.    Which  direction  was  he  riding? 

Answer.    That  direction.  (Pointing.) 

Mr.  Read.  I  think  this  is  what  he  was  ex- 
amined on  before. 

Judge  Grier.  It  is  no  use  in  examining  him 
as  to  what  he  was  examined  on  before.  If  he 
said  this  before,  the  counsel  could  not  intend  to 
re-examine  him  upon  the  same  thing.  If  he  is 
going  on  to  repeat  the  same  thing,  it  must  be  a 
mistake  of  counsel. 

Mr.  Brent.  1  dont  see  in  the  examination 
that  any  such  question  was  asked  the  witness  on 
Saturday. 

Judge  Grier.  You  have  a  right  to  bring  any 
matters  to  the  notice  of  the  witness  that  were 
omitted  before. 

Mr.  Brent.    Did  you  see  any  negroes  ? 

Answer.  Yes ;  I  saw  some  behind  him  a 
piece,  shooting ;  I  dont  know  who  they  were 
shooting  at.  There  was  nobody  going  to  the 
lane  but  Castner  Hanway  and  a  white  man ;  I 
could  not  see  anybody  else  ;  I  dont  know  who 
they  were  shooting  at. 

Question.  What  was  the  distance  between 
his  horse  and  the  negroes  ? 

Answer.    About  twenty  yards. 

Cross -examiued. 

Mr.  Reed.  We  will  fix  this  boy's  position  in 
the  lane. 

The  plan  is  laid  before  him,  and  he  points  it  out. 


Mr.  Lewis.  The  position  described  by  the 
witness  is  ;  first  on  the  road  running  south  of 
Parker's  house,  along  the  woods  opposite  to  a 
point,  about  half  way  between  the  house  and 
the  barn.  The  second  position  is  very  nearly 
opposite  the  end  of  the  long  lane  upon  the  same 
road,  but  a  little  to  the  east  towards  Parker's 
house.  (To  the  witness.)  How  long  did  you 
stand  in  the  first  position,  before  you  moved  to 
the  second  ? 

Answer.    About  a  quarter  of  an  hour. 

J.  Franklin  Reigart  called  and  affirmed. 

Examined  by  Mr.  G.  L.  Ashmead. 

Question.  Are  you  an  alderman  of  the  City 
of  Lancaster  ? 

Answer.    I  am,  sir. 

Question.  Did  you  issue  warrants  for  the 
arrest  of  Castner  Hanway  and  Elijah  Lewis  ? 

Mr.  Reed.  We  must  ask  the  object  of  this 
evidence. 

Mr.  G.  L.  Ashmead.  We  propose  to  prove 
that  he  was  the  alderman  who  issued  the  warrants 
in  these  cases.  That  after  the  warrants  of  arrest 
had  been  issued,  he  was  present  at,  or  about  the 
time  the  arrest  of  Castner  Hanway  was  made  ; 
that  at  that  time  he  heard  a  conversation  be- 
tween Mr.  Hanway  and  Mr.  Kline,  which  con- 
versation, I  wish  him  to  detail  to  the  Court  and 
jury- 

Judge  Grier.  If  it  amounted  to  confessions 
he  should  state  before  hand  whether  any  threats 
or  promises  were  made. 

Mr.  G.  L.  Ashmead.  Questions  of  that  kind 
will  not  arise.    You  have  said  you  issued  

Witness.  That  warrant  was  in  reality  issued 
by  Mr.  Pownell,  he  signed  it.  The  affidavit  was 
signed  by  him,  he  swore  the  witness  at  Christi- 
ana. He  assisted  in  making  the  arrests,  with  the 
constable  and  some  of  his  posse,  and  we  got  some 
hundred  or  hundred  and  fifty  men  from  the  rail- 
road, and  Hanway  and  Lewis  were  first  arrested 
and  brought  to  the  hotel  of  Mr.  Zercher,  and 
when  Hanway  and  Lewis  were  placed  upon  the 
porch,  Mr.  Kline  came  up  to  them  and  said, 
"You  white-livered  scoundrels,  you  yesterday; 
when  I  plead  for  my  life  like  a  dog  and  begged 
you  not  to  let  the  blacks  fire  upon  us,  you  turned 
round  and  told  them  to  do  so."  Mr.  Lewis  in- 
stantly replied,  "No,  I  didn't."  Mr.  Hanway 
said  nothing,  he  didn't  deny  it,  I  didn't  hear  him 
make  any  reply.  I  then  took  Kline  by  the 
shoulder,  and  said,  "I  hope  you  will  say  nothing 
to  produce  a  disturbance  ;  we  wish  to  do  our 
business  legally  and  in  order."  He  replied  that 
he  would  obey  me,  but  could  not  suppress  his 
feelings ;  he  had  had  his  men  shot  down  the  day 
before  like  dogs,  and  it  was  impossible  for  him  to 
restrain  his  feelings.  I  insisted  upon  it  and  he 
remained  quiet ;  and  I  didn't  hear  him  say  any- 
thing more  to  them.  Several  others  then  spoke 
up,  and  I  was  fearful  of  an  excitement,  and  I 
had  to  exert  myself  to  prevent  it ;  and  I  told 
the  constable  to  take  them  out  of  the  view  of  the 
people,  and  he  took  them  up  stairs  and  put  a 
guard  upon  them.  Against  the  black  persons 
nothing  was  said :  the}'  seemed  much  enraged 
against  Hanway  and  Lewis. 

Cross-examined  by  Mr.  Read. 


94 


TREASON  CASES. 


Question.    Was  Kline's  conduct  very  violent  ? 

Answer.  He  made  no  threats — there  was  no 
violence  as  to  taking  hold  of  them — his  feelings 
appeared  much  warmed  at  the  time. 

Question.  Hadn't  he  a  formidable  pair  of 
whiskers  and  a  moustache  on  ? 

Answer..    Yes,  sir. 

Question.    He  appeared  very  formidable  ? 

Answer.  I  thought  at  the  time  he  was  a  very 
singular  looking  man — though  he  seemed  to  do 
Ins  duty  as  an  officer.  He  assisted  the  constable 
in  making  the  arrests. 

Question.    Have  you  seen  him  since? 

Answer.    I  have. 

Question.  He  is  very  much  changed  in  his 
appearance  about  the  face  ? 

Answer.  Nothing  more  than  his  moustache 
is  off. 

Question.    Don't  he  look  more  civilized  ? 
Answer.    I  don't  know — he  didn't  look  un- 
civilized. 

Judge  Grier.  Whether  moustaches  are  a  mark 
of  civilization  or  uncivilization,  I  don't  think 
very  important. 

Mr.  Read.  Was  not  his  manner  violent  to- 
wards the  prisoners  as  they  were  brought  up  ? 

Answer.  From  that  expression  I  thought  it 
was.  His  manner  and  feelings  seemed  much  ex- 
cited. There  was  no  violence  attempted  by  him, 
to  touch  them.  His  expression  seemed  severe 
and  sharp.  It  was  in  a  loud  tone  of  voice.  He 
was  right  in  front  of  them,  not  more  than  three 
or  four  feet  off. 

Question.    Did  he  shake  his  fist  in  their  faces  ? 

Answer.    No,  sir. 

Question.  Did  vou  see  whether  he  did  or 
not  ? 

Answer.  He  stood  in  this  manner,  (shows)  as 
if  speaking  to  them  sharply. 

Question.    With  his  fists  clenched  ? 

Answer.  From  his  manner  of  speaking  and 
his  position,  it  seems  to  me  as  if  they  were  so. 
His  nerves  braced,  but  not  in  an  attitude  of  as- 
sault. I  caught  him  by  the  shoulder  and  told 
him  not  to  say  anything  to  produce  a  disturbance. 

Mr.  Read.    Repeat  the  language  again. 

Witness.  His  language  to  the  best  of  my  re- 
collection— for  I  took  notice  of  it  and  jumped 
towards  him  and  caught  him  by  the  shoulder — 
was  to  this  effect:  "You  white  livered  scoun- 
drels you  !  Yesterday  when  I  plead  with  you  like 
a  dog  for  my  life  and  begged  you  to  prevent  the 
blacks  from  firing  upon  us,  you  turned  round  and 
told  them  to  do  so."  I  caught  hold  of  him  and 
told  him  not  to  say  anything  to  produce  an  ex- 
citement, that  I  wished  to  do  my  business  legally. 

Question.  Kline  was  examined  before  you 
afterwards  ? 

Answer.  Yes. 

Question.  Did  he  testify  to  the  fact  that  Han- 
way  had  directed  the  blacks  to  fire  on  that  occa- 
sion ? 

Answer.  His  testimony  is  in  my  pocket;  I 
can  refer  to  it  ;  (refers  to  it.)  In  his  affidavit  he 
stated,  I  then  saw  another  gang  of  negroes  come 
with  guns  and  clubs. 

Mr.  Read.  I  want  to  know  whether  in  his 
examination  before  you  he  testified  to  the  fact 


that  Mr.  Hanway  or  Mr.  Lewis,  either  one  or  the 
other  had  directed  the  blacks  to  fire. 

Mr.  Brent.  Is  it  not  due  to  the  witness,  to 
ask  him  first.  I  dont  think  this  is  competent,  un- 
less they  ask  the  preliminary  question  of  Kline. 
The  rule  is,  before  you  proceed  to  impeach  a 
witness,  that  you  shall  first  interrogate  him  as 
to  the  fact,  whether  he  did  so  swear ;  because 
he  may  admit  it,  or  explain  it. 

Judge  Grier.  I  think  he  was  examined  here 
before,  as  to  what  he  had  sworn ;  was  he  or  was 
he  not  ? 

Mr.  Read.  He  was  examined  before  Alder- 
man Reigart. 

Judge  Grier.  Was  he  examined  on  that 
point  in  this  Court  ? 

Mr.  Read.  He  swore  positively  in  this  very 
case,  that  he  didn't  hear  Hanway  give  any  order 
to  fire  ;  he  saw  him  lean  over  and  say  something, 
what  it  was  he  could  not  hear.  I  wish  to  show 
that  although  this  was  said  before  Alderman 
Reigart  in  this  way  :  that  when  he  came  to  tes- 
tify before  him,  he  didn't  swear  to  any  such  thing. 

Judge  Grier.  Was  he  asked  to  say  whether  he 
had  not  made  a  different  statement  on  his  oath 
before  the  alderman,  and  to  explain  it  ? 

Mr.  Read.  No,  sir.  His  statement  before 
the  alderman  is  like  the  statement  before  the 
Court.  He  has  never  testified  either  before  Al- 
derman Reigart  or  this  Court,  to  what  he  said 
to  these  individuals,  when  he  threatened  them 
as  white  livered  scroundrels,  and  treated  them 
in  that  way  ;  men  then  in  custody.  A  sort  of 
conduct  which,  in  an  officer  calling  himself  a 
marshal,  is  not  very  proper. 

Mr.  J.  W.  Ashmead.  That  may  be ;  that  is 
for  the  jury.  He  thought  that  was  as  proper,  I 
suppose,  as  that  these  people  before,  should  re- 
fuse to  save  his  life. 

Judge  Grier.  If  it  is  only  to  prove  that  he 
said  the  same  thing  before  as  he  said  here;  I 
dont  see  what  object  you  have  in  it. 

Judge  Kane.  It  is  not  in  the  defence  to  sup- 
port the  witness  of  the  prosecution. 

Mr.  Read.  The  state  of  the  case  is  this  :  the 
witness  has  been  examined  and  has  testified  to 
what  is  entirely  in  contradiction  to  what  he  said 
at  that  time.  It  is  attempted  to  show  that  by  a 
false  statement  made  by  him  to  them,  they  con- 
fessed this  fact,  and  I  propose  to  show  that  be- 
fore the  same  Alderman  in  whose  presence  he  had 
made  the  statement,  he  did  not  repeat  it  on  ex- 
amination. That  takes  away  any  character  of 
confession  from  the  defendant.  It  is  merely  an 
asser  tion  on  the  part  of  Kline,  which  he  knew  to  be 
false  ;  that  it  was  an  assertion  of  passion,  which  he 
has  never  under  oath  dared  to  make.  One  says 
no  to  it,  and  the  other  does  not  say  anything; 
he  was  a  very  quiet,  peaceable  man,  as  we  shall 
hereafter  prove. 

Mr.  Brent.  The  simple  proposition  before 
the  Court  is,  whether  they  can  offer  the  affidavit 
of  Mr.  Kline  before  Alderman  Reigart  before 
they  have  examined  Mr.  Kline  as  to  whether  he 
gave  that  evidence.  Every  principle  of  justice 
requires  that  the  witness  should  first  be  interro- 
gated on  that  point. 

Judge  Grier.    This  evidence  is  entirely  irrel- 


UNITED  STATES 


HANWAY. 


evant  to  the  purpose  for  -which  it  is  offered,  be- 
cause you  can  draw  the  same  argument  from  his 
swearing  it  here,  as  if  he  had  sworn  it  a  hundred 
times.  The  only  objection  I  can  see,  would  be 
its  irrelevancy. 

Judge  Kane.  So  far  as  it  might  in  argument 
be  used  against  the  witness,  he  is  entitled  to  dis- 
tinct notice  upon  his  examination  in  chief. 

Judge  Grier.  That  is  if  he  had  testified  dif- 
ferently— but  that  is  not  the  case. 

Mr.  Read.  The  United  States  in  the  examina- 
tion of  some  particular  witnesses,  have  shaped 
their  course  in  such  a  way  as  to  make  us  ask  what 
might  properly  have  come  out  in  the  examina- 
tions in  chief.  We  did  not  put  such  a  question 
as  this,  in  the  first  place,  because  we  did  not 
know  of  it.  We  knew  of  other  matters,  but  we 
were  afraid,  under  the  decision  of  your  honors, 
that  we  might  be  concluded  by  the  answer,  if  we 
questioned  the  witness  upon  them. 

Mr.  Read,  (to  the  witness.)  Did  you  see  Mr. 
Hanway  and  Mr.  Lewis  come  up  to  Christiana? 

Answer.  I  saw  them  there :  I  didn't  see  them 
when  they  came  to  the  house :  I  saw  one  of 
them  at  the  time  they  came  to  the  house  ;  I  don't 
recollect  seeing  Hanway :  I  saw  Lewis  at  the 
time  I  -was  taking  Marshal  Kline's  affidavit  at 
the  place. 

Question.  At  the  time  you  were  taking  the 
affidavit  you  saw  Mr.  Lewis  ? 

Answer.    I  thought  it  was  him. 

Question.  That  was  before  the  warrant  was 
issued? 

Answer.  1  es.  Lewis  I  think  was  there  when 
I  was  writing  out  the  affidavit,  the  warrant  was 
issued  afterwards. 

Question.    When  did  you  see  Mr.  Hanway  ? 

Answer.  When  I  saw  him.  was  when  the 
constable  brought  him  and  Lewis  on  the  porch. 
I  think  I  seen  him  go  to  these  two  men  on 
another  side  of  the  house  and  arrest  them — 
whether  they  were  willing  or  not  I  don't  know. 

Question.  At  the  time  of  your  taking  the  de- 
position and  issuing  of  the  warrants,  these  indi- 
viduals were  in  reality  present  at  Christiana  V 

Answer.  I  dont  recollect  seeing  Mr.  Hanway. 

Question.  You  saw  them  there  when  the 
constable  went  to  arrest  him  ? 

Answer.  Yes. 

Question.  Didn't  you  understand  that  they 
came  there  to  resist  any  charge  ? 

Mr.  Brent.    I  object  to  that. 

Witness.  They  seemed  both  anxious  to  get 
off.  Mr.  Lewis  asked  me  myself  whether  it 
would  not  do  to  go  up  to-morrow,  he  didn't  see 
the  necessity  of  going  up  then. 

Question.  He  was  willing  to  go  to  Lancaster  ? 

Answer.  Xo,  he  wanted  to  know  if  it  would 
not  do  to-morrow.  The  constable  said  he  could 
not  let  them,  and  then  I  think  one  of  them  spoke 
to  Thompson,  and  asked  whether  they  might  not 
remain  there  till  next  day,  and  send  Judge  Lewis 
down  to  take  bail. 

Question.  They  were  both  on  the  spot  at  the 
time  the  warrants  were  issued,  Mr.  Lewis  you 
saw  before,  and  Mr.  Hamway  at  the  time  the 
warrant  was  issued  ? 

Answer.    Not  at  the  time  the  warrant  was 


issued.  I  saw  them  serve  the  warrant  when  he 
was  near  the  house. 

Question.  Mr.  Hanway  didn't  go  down  to 
his  mill  ? 

Answer.  Not  that  I  know  of.  when  I  first 
saw  them  together  the  constable  had  them,  per- 
haps not  more  than  ten  yards  from  the  house. 

Re-examined  by  Mr.  Brent. 

Question.  The  warrants  were  issued  before 
you  saw  the  constable  have  them  ? 

Answer.    Of  course. 

Question.  Were  they  there  when  the  war- 
rants were  issued? 

Answer.  I  don't  recollect  seeing  Hanway — I 
think  Lewis  came  into  the  room,  I  didn't  know 
till  after  he  was  arrested  that  he  was  the  person, 
but  I  think  I  saw  him  in  the  room  at  the  time  I 
was  taking  the  affidavit. 

Question.  It  was  taken  before  Pownell  ? 

Answer.  Yes,  he  as  the  magistrate  had  to 
swear  him — he  said  he  could  not  write  fast 
enough,  and  I  wrote  the  affidavit  and  he  signed  it. 

Question.  How  long  after  that  did  you  =pp 
the  officer  serve  the  warrant  ? 

Answer.  I  think  not  over  fifteen  minutes,  to 
the  best  of  my  recollection. 

William  Proudfoot  sworn. 

Examined  by  Mr.  G.  L.  Ashmead. 

Question.  Where  do  you  reside  ? 

Answer.  Ln  Sadsbury  Township,  Lancaster 
county. 

Question.    Are  you  a  constable  there  ? 
Answer.    Yes,  sir. 

Question.  Were  the  warrants  for  the  arrest 
ot  Castner  Hanway  and  Elijah  Lewis,  and  others, 
placed  in  your  hands  ? 

Answer.    Yes.  sir. 

Question.  Did  you  arrest  Castner  Hanway 
and  Elijah  Lewis  ? 

Answer.    Yes.  sir. 

Question.    Where  ? 

Answer.    At  Christiana. 

Question.    At  whose  house  ? 

Answer.    Frederick  Zerker's. 

Question.  Was  Alderman  Reigart  present  on 
that  occasion  ? 

Answer.    Yes.  sir. 

Question.  Did  you  make  the  arrest  yourself? 
Answer.    Yes  sir. 

Question.  State  to  the  Court  and  Jury  how 
you  made  the  arrest  ? 

Answer.  Hanway  and  Lewis  came  to  Chris- 
tiana. I  had  been  there  some  few  minutes  before 
they  came,  and  I  had  seen  them,  and  went  out 
and  executed  the  warrant  on  them  and  took  them 
into  my  custody  at  Christiana. 

Question.  When  you  took  them  into  custody 
what  did  they  say  ? 

Answer.  They  asked  me  whether  they  could 
not  get  off  till  the  next  morning.  I  told  them  it 
was  out  of  my  power  to  let  them  off:  I  hadn't 
any  authority  to  let  them  off.  At  the  time  I 
arrested  them,  Kline,  the  deputy  marshal,  came 
up,  and  he  says  to  Castner  Hanway  and  to  Elijah 
Lewis,  You  white-livered  scoundrels !  if  you 
had  said  one  word  yesterday,  our  men  would 
not  have  been  killed.  Mr.  Hanway  made  no 
reply;  though  before    that,  Kline  says,  but 


96 


TREASON  CASES. 


rather  than  saying  that,  you  told  them  to  shoot. 
Mr.  Hanway  made  no  reply;  Kline  said,  you 
told  them  to  shoot ;  if  you  said  a  word  in  our 
behalf,  it  would  have  saved  our  men.  Mr.  Han- 
way  made  no  reply,  and  Elijah  Lewis  said,  I 
didn't. 

Question.  Have  you  given,  as  near  as  you 
recollect,  the  language  used  by  both  Kline  and 
Hanway,  on  that  occasion. 

Answer.  To  the  best  of  my  knowledge  and 
belief,  I  have. 

Question.  Was  any  thing  said  upon  either 
side  as  to  begging  for  lives  ? 

Answer.    Not  that  I  heard. 

Cross-examined  by  Mr.  Reed. 

Question.  Before  the  affidavit  was  made  be- 
fore Mr.  Pownell,  did  you  see  Mr.  Lewis  and  Mr. 
Hanway,  at  Zerker's  tavern  ? 

Answer.    I  did  not. 

Question.    When  did  you  first  see  them  ? 

Answer.  I  seen  them  after  the  warrant  was 
handed  over  to  me  ? 

Question.    Where  about  did  you  see  them  ? 

Answer.    Just  off  the  porch  at  the  sign-post. 

Question.  How  long  did  it  take  to  write  that 
deposition  of  Kline,  and  issue  the  warrants  ? 

Aiiswer.    I  cannot  tell. 

Question.    Did  it  take  half  an  hour  ? 

Answer.  I  don't  know.  They  came  and 
fetched  me  down,  and  they  were  there  before  I 
came. 

Question.  It  was  quite  a  long  deposition, 
was  it  not  ? 

Answer.    Yes,  sir. 

Question.    It  took  time  enough  to  write  a 
long  deposition. 
Answer.  Yes. 

Question.    You  and  they  knew  what  the  ob-  I 
ject  of  that  was,  to  arrest  certain  persons  ? 
Answer.    Of  course. 

Question.  And  if  Mr.  Lewis  and  Mr.  Han- 
way were  there,  they  knew  that  somebody  was 
to  be  arrested  ? 

Answer.    That  I  cannot  tell  you. 

Question.  You  mentioned  that  they  wanted 
to  go  home,  and  go  up  the  next  day ;  I  suppose, 
I  course,  to  make  their  family  arrangements. 

Answer.    Yes,  sir. 

Question.  Personally  you  were  willing  that 
they  should  go. 

Mr.  Brent.  I  should  like  him  to  say,  whether 
they  said  it  was  to  make  their  family  arrange- 
ments;  I  object  to  any  inferences;  state  what 
was  said. 

Judge  Grier.  What  was  the  question,  and 
what  was  the  difficulty? 

Mr.  Read.  The  witness  stated  that  they  re- 
quested him  to  let  them  go  till  morning ;  I  want 
to  know  whether  personally  he  was  willing  that 
they  should  go  ? 

Mr.  Brent.    I  do  not  object  to  that  question. 

Answer.    I  wTas  not  willing  for  them  to  go. 

Mr.  Lewis.  Didn't  you  state  to  them  imme- 
diately after  their  arrest,  that  you  had  not  any 
objections  to  their  going,  until  you  ascertained, 
as  you  thought,  that  there  was  some  considerable 
excitement  upon  this  subject? 

Answer.  'They  told  me  they  had  been  to  the 


District  Attorney  of  Lancaster,  and  asked  him, 
and  I  asked  them  what  he  said,  and  they  could 
not  give  me  a  correct  account  of  it,  and  I  could 
not,  for  my  part,  let  them  go.  Mr.  Lewis  said 
the  District  Attorney  said  he  hadn't  anything  to 
do  with  it,  and  it  was  all  upon  me,  and  I  told 
them 

Mr.  Read.   You  didn't  like  to  take  the  respon- 
sibility, I  suppose  ? 
Answer.    Yes,  sir. 
Charles  Smith  affirmed. 
Examined  by  Mr.  Ashmead. 
Question.    Where  do  you  reside  ? 
Answer.    In  Chester  County. 
Question.    How  far  from  Christiana  ? 
Answer.    About  two  miles. 
Question.    Do  you  recollect  the  morning  that 
Kline  and  his  party  came  up  to  Christiana  ? 
Answer.    Yes,  sir. 

Question.  State  to  the  court  and  jury  what 
took  place  upon  that  morning  with  regard  to  that 
transaction. 

Answer.  The  morning  that  they  came  up,  there 
was  a  colored  man  — 

Mr.  Lewis.  I  suppose  the  object  now  is,  to 
get  the  same  testimony  from  this  witness  that 
was  given  on  the  hearing  before  Alderman 
Reigart.  I  have  a  copy  of  the  testimony,  and  I 
will  show  to  the  court,  by  marking  it  along  the 
side,  what  the  testimony  is,  so  as  to  show  to 
what  I  object.  (Does  so,  and  hands  it  to  the 
court.)  Now,  if  the  court  please,  I  apprehend 
that  this  stands  precisely  upon  the  same  basis  as 
any  other  conversation  between  third  persons, 
and  for  that  reason  is  entirely  inadmissible. 

Judge  Grier.  Would  the  fact  be  relevant, 
speaking  of  it  not  as  an  admission,  but  as  a  fact, 
I  would  it  be  relevant  to  this  case,  to  prove  that 
some  persons  went  from  here  to  give  notice  in 
the  neighborhood,  though  not  brought  home  to 
the  prisoner. 

Mr.  Lewis.  It  might  be  relevant  if  it  were 
shown  that  notice  was  given  to  any  person  par- 
ticipating in  this  transaction;  but  that  notice 
was  given  to  a  man  who  had  nothing  to  do  with 
it,  to  a  stranger  to  the  transaction,  dont  appear 
relevant.  It  must  be  shown  to  have  become  a 
part  of  the  res  gestae.  What  is  wanted  here,  is 
the  connecting  link,  and  that  the  testimony  does 
not  supply — the  connecting  link  between  the 
actors  in  this  conversation  and  the  actors  upon 
the  ground  afterwards. 

A  conversation  between  two  persons  at  Chris- 
tiana, passengers  upon  the  railroad  cars,  in  rela- 
tion to  there  being  kidnappers  abroad,  or  of 
persons  coming  into  a  neighborhood  for  the  pur- 
pose of  reclaiming  fugitive  slaves,  and  departing 
before  the  outbreak  occurs,  in  the  next  trains  of 
cars  would  notbe  evidence  here,  because  not  in  any 
way  connected  with  the  transaction.  This  stands 
precisely  upon  the  same  ground  ;  because,  inas- 
much as  there  is  no  evidence  here,  nor  offer  to 
produce  evidence  going  to  connect  these  indi- 
viduals with  the  transaction  ;  they  are  strangers 
to  the  whole  transaction,  and  I  submit  it  is 
not  evidence. 

Mr.  G.  L.  Ashmead  Your  Honors  will  recol- 
l  lect,  that  Mr.  Kline  in  his  examination  stated, 


UNITED  STATES  V.  HAN  WAY. 


9T 


that  on  the  way  up  to  Christiana,  and  when  not 
far  from  there,  there  was  a  colored  man  from 
this  city  named  Samuel  Williams,  met  him,  and 
stated  to  him,  that  the  men  he  was  searching 
for,  had  been  there,  but  that  they  were  too  late. 
He  stated  also,  that  this  same  colored  person, 
after  their  party  had  got  into  a  wagon,  followed 
them  a  mile  or  so  along  the  road,  and  he  knew  it 
was  the  same  man,  because  he  described  his  dress, 
&c.  I  wish  to  show  that  this  same  colored  man, 
Samuel  Williams,  on  the  mo.  ning  on  which  Kline 
first  went  up  to  Christiana,  on  the  10th  of  Sep- 
tember last,  was  at  Christiana;  that  he  stated 
he  had  been  there,  for  the  purpose  of  giving 
information  to  the  slaves  of  their  intended  arrest, 
by  a  party  from  this  city,  and  that  he  had  left  at 
Christiana,  a  paper  giving  that  information.  I 
intend  to  go  further,  because  all  testimony  must 
have  a  commencement,  as  well  as  an  ending  ; 
and  this  is  the  commencement. 

I  intend  to  show  that  Samuel  Williams  in- 
formed Mr.  Smith,  the  witness,  that  he  had  left 
a  paper  at  Cnristiana  giving  this  information, 
and  to  follow  it  up  by  showing  the  existence  of 
that  paper  containing  the  information,  which 
Williams  said  he  had  taken  into  that  neighbor- 
hood, and  cautioning  the  people  there  as  to  the 
arrest,  and  giving  information.  We  offer  it  to 
show  preconcert  and  combination  among  the  par- 
ties in  that  neighborhood,  and  especially  among 
the  parties  assembling  at  the  house  of  Parker  at 
the  time  Edward  Grorsuch  was  murdered,  and  we 
offer  it  upon  the  same  grounds  that  we  offered  to 
show  the  blowing  of  the  horns — both  of  them 
being  means  of  collecting  the  people  together. 
Upon  every  principle  of  law  and  reason,  I  think 
we  have  a  right  to  show  this,  as  a  fact  in  the  case, 
merely  tending  to  show  preconcert  and  combina- 
tion among  the  parties  assembled  at  Parker's. 

Mr.  John  W.  Ashmead.  This  testimony  is 
exceedingly  important  it  seems  to  me,  in  pre- 
senting the  case  of  the  United  States.  The  charge 
is  treason,  which  is  analogous  to  conspiracy,  and 
the  rules  of  evidence  applying  to  conspiracy  ap- 
ply very  much  the  same  to  treason.  The  alle- 
gation is,  that  these  people  were  assembled  at  a 
certain  house,  on  a  certain  occasion,  to  resist  an 
officer,  and  to  render  nugatory  and  void  the  law 
lie  went  to  execute.  And  we  have  shown  the 
acts  of  many  of  the  parties  on  the  ground,  and 
we  have  shown  the  occurrences  of  the  morning  of 
the  11th  September,  1851.  We  now  propose  to 
begin  at  the  beginning  of  this  transaction  and  go 
through  with  it,  that  the  Court  and  jury  may 
comprehend  it — and  we  begin  by  showing  that 
the  knowledge  of  this  fact  was  known  to  Wil- 
liams, one  of  those  indicted  with  the  defendants, 
that  he  preceded  the  officer  making  the  arrest, 
first  to  Penningtonville,  that  he,  by  mistake,  in- 
stead of  going  to  the  house  of  a  party  for  whom 
he  sought,  went  to  the  house  of  the  witness,  and 
there  he  made  statements  in  reference  to  these 
slaves — detailed  the  object  for  which  he  went  up, 
asserting  that  he  had  been  to  Christiana,  and  had 
left  there  a  paper,  upon  which  the  names  of 
these  slaves  were  written,  and  left  it  there  to 
give  information  to  the  people  that  the  officers 
were  coming  up  to  make  the  arrest. 


This  is  the  beginning  of  the  transaction  and 
was  the  first  information  which  led  to  the  assem- 
bling of  the  band  of  armed  negroes  and  the  other 
parties  at  Parker's  house.  If  a  man  starts  a 
conspiracy  and  goes  ahead  for  the  purpose  of 
giving  information,  all  that  is  the  beginning  of 
the  transaction  and  part  of  the  res  gestae,  which 
we  can  give  in  evidence.  And  after  the  informa- 
tion taken  by  this  man,  this  defendent  was  seen 
there,  acting  in  concert  with  them,  encouraging 
them,  and  he  is  responsible  for  all  that  happened 
from  the  beginning,  and  even  if  he  is  not  con- 
nected from  the  beginning,  notice  is  shown  to  be 
given,  and  he  is  found  actively  engaged  in  pre- 
venting the  arrest. 

Judge  Grier.  Is  that  person  one  of  the  de- 
fendants ? 

Mr.  Ashmead.  One  of  the  defendants  indicted 
and  who  will  be  tried.  Inasmuch  as  Williams 
went  up  and  seems  to  have  been  a  sort  of  officer 
who  went  ahead  to  give  the  information,  and 
under  that  these  people  were  collected  together, 
and  the  defendant  among  them  ;  under  the  charge 
delivered  to  the  grand  jury  by  Judge  Kane  he  is 
responsible.  Suppose  treason  committed  against 
the  United  States  by  violence  and  force  to  pre- 
vent the  execution  of  a  particular  law,  and  sup- 
pose a  party  should  be  shown  twenty  or  a  hun- 
dred miles  distant  from  the  transaction  to  have 
loaded  guns,  or  given  guns  to  parties  and  sent  up 
to  warn  them,  though  he  might  not  have  been  at 
the  scene  of  the  transaction,  he  would  be  respon- 
sible. So  here,  if  Williams  went  there  in  viola- 
tion of  the  law  to  give  information,  and  gave  in- 
formation by  means  of  which  this  force  was  col- 
lected, and  this  defendant  was  there  acting  in  it, 
and  among  these  people,  when  so  collected,  it 
seems  to  me  it  is  clear  that  he  is  -as  much  re- 
sponsible for  that  act,  as  if  he  had  gone  up  with 
Williams. 

Mr.  Lewis.  I  dont  see  that  the  objection  I 
made  to  the  admission  of  this  evidence  is  an- 
swered. If  we  look  at  the  indictment  we  disco- 
ver that  this  defendant  is  indicted  for  having 
committed  the  several  acts  therein  named,  in 
company  with  other  persons  unknown.  Williams 
is  not  mentioned  in  the  indictment.  It  is  now 
proposed  to  show  some  conversations,  not,  as  I 
understand  even  with  Williams  himself, — 

Mr.  Ashmead.    Yes,  it  is  with  him. 

Mr.  Lewis.  Well,  it  is  proposed  to  show  some 
conversation  with  him  in  relation  to  these  persons 
coming  for  the  purpose  of  making  some  arrests 
of  slaves.  Now  it  is  to  be  recollected  that  Wil- 
liams is  in  no  way  connected  by  any  of  the  evi- 
dence yet  given,  with  the  defendant,  nor  with  any 
of  those  who  appeared  upon  the  ground  as  far  as 
appears,  and  it  will  be  seen  as  Ave  progress  that 
that  is  the  truth.  The  defendant  was  there  by 
mere  accident — a  spectator  merely  without  know- 
ing anything  about  what  was  intended,  or  going 
on,  and  we  have  a  right  to  assume  in  the  present 
position  of  affairs,  that  such  was  the  case ;  and 
what  is  it  then  under  these  circumstances  that  is 
attempted  to  be  done.  To  show  that  other  per- 
sons had  such  conversation  as  tends  to  prove  that 
they  knew  there  was  a  person  in  the  neighbor- 
hood or  about  to  come  into  the  neighborhood 


13 


93 


TREASON  CASES. 


for  the  purpose  of  reclaiming  these  slaves.  This  | 
does  not  in  any  way  affect  us,  because  it  wants 
the  connection  which  is  neeessary  between  our- 
selves and  this  individual.  Persons  may  converse 
upon  this  subject — persons  may  come  into  the 
neighborhood  and  give  notice,  yet  if  that  con- 
versation is  not  connected  with  us  in  any  way, 
and  the  notice  does  not  reach  our  ears  and  we 
are  there  merely  by  accident,  how  are  we 
to  be  implicated  in  the  consequences  of  the 
notice  ? 

In  cases  of  conspiracy  the  evidence  must  first 
be  given  to  show  that  the  party  charged  was  con- 
nected with  the  conspiracy — after  that  j  ou  may 
show  conversations  among  the  conspirators  rela- 
tive to  the  immediate  subject  of  the  conspiracy, 
and  you  cannot  prove  general  conversations,  but 
nothing  but  that  which  has  an  immediate  relation 
to  the  matter.  Unless  it  is  so,  the  consequence 
would  be  that  any  man  who  happens  to  be  upon 
the  ground  as  a  mere  spectator  might  be  implica- 
ted by  conversations  that  he  knew  nothing  of,  and 
by  notice  that  never  reached  his  ears. 

The  same  evidence  would  have  been  relevant 
if  Miller  Nott  had  been  the  person  charged  ;  he 
was  upon  the  ground,  and  was  brought  there 
only  a  few  minutes  later  than  Mr.  Hanway,  and 
as  far  as  appears,  came  there  with  precisely  the 
same  object.  There  is  nothing  to  connect  him 
or  Mr.  Hanway  with  it,  and  I  insist  upon  it,  that 
there  is  a  clear  distinction  between  such  com- 
munications as  are  made  between  persons  who 
are  involved  in  a  conspiracy,  and  who  have  by 
some  act  and  declarations  of  their  own,  been 
connected  with  it ;  and  declarations  that  merely 
show  that  there  were  some  persons  that  had  cog- 
nizance of  it ;  and  those  declarations  never  came 
to  the  ears  of  the  parties. 

Judge  Kane.  If  this  defendant  was  present 
at  the  time  of  the  asserted  overt  act,  as  it  is  to  be 
contended  that  he  partook  in  it,  and  was  a  party 
to  it,  the  question  extremely  material  ,  is,  as  to 
the  intent  of  his  coming  there.  Was  it  by  acci- 
dent, or  in  pursuance  of  preconcerted  design. 
The  purpose  for  which  he  came  is  part  of  the 
case  for  the  United  States,  and  they  may  prove  it 
by  showing  the  existence  of  circumstances,  from 
which  the  jury  may  infer  that  the  appearance  of 
the  prisoner  at  a  particular  time,  at  a  particular 
place,  and  under  certain  circumstances,  was  in 
pursuance  of  a  concerted  purpose.  A  body  of 
men  are  assembled  on  Braddock's  field ;  the 
question  is,  whether  assembled  there  for  the  pur- 
pose of  resisting  the  laws  of  the  United  States, 
or  whether  there  by  mere  accident.  A  procla- 
mation stuck  upon  the  sign-posts  in  the  neigh- 
borhood inviting  all  who  are  determined  in  re- 
sisting the  law,  to  assemble  at  that  hour  in 
Braddock's  field,  though  the  authorship  of  it  be 
not  traced  to  the  actors,  yet  it  is  a  fact  from 
which  a  jury  may  infer  the  intentions  of  the  par- 
ties who  had  assembled  at  that  hour,  at  that 
place,  if  violence  was  subsequently  done. 

How  far  the  evidence  of  the  particular  wit- 
nesses may  be  about  to  give,  can  avail  to  show 
this  purpose,  is  a  question  for  the  jury  on  the 
argument.  The  simple  question  for  the  court  is, 
whether  it  is  not  admissible  as  evidence,  —  to  the 


history  of  the  transaction.  In  that  view  the 
court  is  disposed  to  admit  it. 

Judge  Grier.  We  consider  there  is  some  prima 
facie  evidence,  which  may  be  rebutted,  that  this 
man  partook — that  he  was  at  least  present  at  an 
outrage  in  which  a  hundred  men  were  concerned. 
Having  thus  far  identified  him  with  that  occur- 
rence, the  acts  of  all  the  parties  concerned  in  it 
became  evidence  against  him  to  show  the  nature 
of  the  offence.  Otherwise  it  would  be  impossible 
to  make  out  treason  or  conspiracy.  If  a  man  is 
found  armed,  or  in  company  with  one  hundred 
other  men  opposing  an  officer,  and  he  is  charged 
with  treason,  evidence  may  be  admitted  that 
there  were  meetings  held  and  speeches  made  in- 
citing to  rebellion  against  the  laws,  even  if  that 
person  was  not  present.  It  becomes  a  part  of 
the  history — of  the  res  gestai ;  and  we  must  have 
the  whole  res  gestae  to  judge  of  what  was  the  in- 
tention of  the  parties. 

Mr.  Read.  I  suppose  we  will  be  entitled  to 
the  converse  of  the  proposition  when  we  come  to 
our  case. 

Judge  Grier.  Of  course,  you  can  show  any 
fact  that  tends  to  contradict  this.  If  I  were  you, 
I  would  not  object  to  the  testimony. 

Mr,  Read.  I  don't  think  we  shall  now,  for 
we  have  what  will  be  important  for  us  hereafter. 

Examination  of  the  witness  continued  by  Mr. 
G.  L.  Ashmead. 

Question.  You  have  stated  that  on  the  morn- 
ing Mr.  Kline  came  up,  a  colored  man  came  to 
your  place  ;  what  time  was  it  ? 

Answer.    About  daylight. 

Question.    What  was  his  name  ? 

Answer.    Samuel  Williams. 

Question.  State  what  took  place  between 
you  and  him  ? 

Answer.  He  said  he  came  up  in  the  morning 
line,  and  several  persons  along  with  him,  and 
they  were  on  the  hunt  of  slaves,  one  of  them 
named  Nelson  and  several  others,  he  had  left 
their  names  on  a  paper  at  Christiana.  He  was 
going  to  Boyd's  and  got  to  my  place  in  mis- 
take.   He  wished  us  to  give  the  slaves  notice. 

Question.    Notice  of  what  ? 

Answer.  That  their  masters,  or  the  men  who 
came  up  in  the  cars  were  after  them. 

Question.  To  whom  was  the  notice  to  be 
given  ?  what  did  he  say  about  the  notice  ? 

Answer.  He  said  he  wished  us  to  give  them 
notice.    He  said  nothing  further. 

Question.  Nothing  as  to  whether  he  knew 
the  men  in  the  cars  ? 

Ansaver.  He  said  he  knew  one  man  named 
Kline,  and  that  Kline  knew  him. 

Question.  Did  you  understand  from  him  what 
the  paper  contained  that  he  left  at  Christiana  ? 

Answer.    Nothing  but  these  names. 

Question.  Did  he  state  what  the  names 
were  ? 

Answer.    I  don't  recollect  the  names. 
Question.    Did  he  say  to  whom  he  gave  that 
paper  ? 

Answer.  No. 

Question.  Did  you  go  to  the  assistance  of 
Dickinson  Gorsuch  the  wounded  man,  that 
morning  ? 


UNITED  STATES  V.  HAN  "WAY. 


99 


Answer.  No,  I  didn't  go  to  his  assistance,  I 
was  asked  to  go,  Kline  asked  me. 

Question.  How  far  was  that  from  the  scene 
of  action,  where  yon  were  ? 

Answer.  About  three  miles.  He  said  he 
would  give  five  dollars  to  any  one  who  would  go 
to  fetch  Edward  Gorsuch  and  his  son  to  Penning- 
tonville  ;  I  went  to  the  orchard.  Dickinson  Gor- 
such lay  at  the  time  I  was  there  at  Levi  Pow- 
nelFs,  I  went  for  Edward  Gorsuch — I  got  there 
between  nine  and  ten  o'clock  in  the  morning, 
and  I  found  him  laying  in  the  orchard. 

Question.  What  was  the  condition  of  the 
body  when  you  first  saw  it  ? 

Answer.  Laying  as  he  was  dressed — just  laid 
out  on  the  board. 

Question.    Blood  about  his  person  ? 

Answer.    I  didn't  see  none. 

Question.    Did  you  take  him  to  your  house  ? 

Answer.  No. 

Question.    Where  did  you  taKe  mm  ? 

Answer.  I  didn't  move  him  at  all,  the  inquest 
was  not  held  at  that  time  and  they  wished  to 
take  him  to  Christiana.  I  left  before  he  was 
moved  away. 

Question.    What  time  was  it  when  you  left  ? 

Answer.  I  left  and  got  to  Penningtonville 
about  12  o'clock ;  that  is  three  miles  below. 

Mr.  Brent.  Did  you  notice  the  injuries  on 
the  body  of  Mr.  Gorsuch  ? 

Answer.  No,  sir.  He  was  bleeding  at  the 
mouth.    I  didn't  examine  the  bodies. 

Question.  You  say  the  colored  man  told  you 
he  had  come  up  to  give  this  information. 

Answer.    Yes,  sir. 

Question.  That  he  had  been  to  Christiana  and 
had  left  their  names  on  a  paper  ;  you  dont  recol- 
lect the  names? 

Answer.    Yes,  sir. 

Question.  He  further  said  he  wished  you  to 
give  notice,  or  he  wished  notice  to  be  given — 
which  ? 

Answer.  He  wished  notice  to  be  given  to  the 
slaves. 

Question.  Did  he  specify  the  slaves,  or  did  he 
speak  generally  ? 

Answer.  He  just  wished  us  to  give  the  slaves 
notice. 

Question.  Did  he  say  the  runaway  slaves  or 
the  colored  people  ? 

Answer.    Slaves,  he  said. 

Question.  None  of  these  slaves  were  in  your 
immediate  neighborhood  so  far  as  you  knew? 

Answer.  I  do  not  know  where  any  of  them 
were. 

Question.    You  didn't  tell  him  ? 
Answer.    I  didn't  tell  him  anything  about  it. 
Question.    Did  he  tell  you  from  whom  he  got 
this  information  ? 
Answer.  No. 

Question.    Or  how  he  got  it  ? 
Answer.  No. 

Question.    Did  you  ask  him  the  question  ? 
Answer.    No,  I  didn't  ask  him  any  questions 
about  it. 

Cross-examined  by  Mr.  Lewis. 
Question.  Where  is  Boyd's  ? 
Answer.    It  joins  my  property  on  the  East. 


Question.  That  is  about  three  miles  from 
Parker's  ? 

Answer.  Yes,  as  much  as  four  miles  east  of 
Parker's. 

Question.    Not  far  from  Parksburg  ? 

Answer.    About  two  miles. 

Dr.  Augustus  Cain  affirmed. 

Examined  by  Mr.  G.  L.  Ashmead. 

Question.  Where  do  you  reside  ? 

Answer.  Near  Christiana,  some  eight  hun- 
dred or  a  thousand  yards  from  there,  I  suppose. 

Question.    How  far  from  Parker's  house  ? 

Answer.    About  two  miles  and  a  half. 

Question.  Do  you  recollect  anything  that 
took  place  on  the  afternoon  of  the  10th  of  Sep- 
tember last  ?    State  what  took  place  then? 

Answer.  Josephus  Washington  presented  a 
paper  for  me  to  read  on  the  afternoon  of  10th 
September.  It  contained  three  names  or  parts 
of  names.  The  first  one  I  have  forgotten — the 
second  name  was  Josh,  the  third  Ford.  A  dash 
of  the  pen  was  opposite  each  name,  and  just  be- 
neath that  was  Hartford  Co.,  Maryland. 

Question.  Was  Josephus  Washington  a  colored 
man  ? 

Answer.  Yes. 

Question.  Was  anybody  with  him  ? 
Answer.  Yes. 
Question.    Who  ? 

Answer.  I  was  not  aware  of  his  name  at  the 
time,  I  have  understood  it  was  John  Clark,  he 
was  a  colored  man  also. 

Mr.  J.  W.  Ashmead.  They  escaped  from 
prison. 

Mr.  Brent.  When  did  you  first  hear  of  the 
murder  of  Edward  Gorsuch  ? 

Answer.  On  the  morning  of  the  murder, 
about  six  o'clock.  Not  of  the  murder,  I  didn't 
hear,  but  I  heard  that  the  kidnappers  had  been 
at  Parker's.    That  was  the  time  I  heard  it  first. 

Question.  As  early  as  six  o'clock  in  the 
morning  ? 

Answer.  Yes.  I  didn't  hear  it  at  Christiana, 
but  some  short  distance  above  my  place. 

Judge  Grier.  I  suppose  in  the  language  of 
that  region,  any  master  seeking  to  recover  his 
slave,  is  called  a  kidnapper.  I  want  to  know 
what  the  witness  means  by  it.  I  know  it  is  a 
cant  phrase  with  some  people — to  say  so. 

Witness.  I  give  the  words  as  they  were  told 
to  me  by  a  colored  man,  that  there  were  kidnap- 
pers at  Parker's. 

Question.  Do  you  reside  nearer  to  Parker's 
than  Christiana,  or  in  the  opposite  direction  ? 

Answer.  In  the  opposite  direction.  It  was 
above  my  place,  some  two  or  three  hundred  yards 
nearer  Philadelphia. 

Question.    Who  told  you  about  it? 

Answer.  Francis  Hawkins,  a  colored  per- 
son. 

Question.  What  time  did  you  first  hear  of 
the  murder  ? 

Answer.  Sometime  in  the  forenoon  of  that 
day. 

Question.  And  you  heard  that  there  had  been 
a  fight  at  that  time  ? 

Answer.  I  dont  know  as  to  that ;  I  under- 
stood that  some  persons  had  been  murdered. 


100 


TREASON  CASES. 


Question.  Were  you  at  any  time,  after  you 
heard  of  this  occurrence  of  the  man's  having  been 
killed,  called  upon  to  dress  any  wounds  of  any 
colored  persons,  and  who  were  they? 

Answer.  I  was ;  sometime  in  the  forenoon  of 
the  day. 

Question.    How  many? 

Answer.  Tavo. 

Question.    How  were  they  wounded? 

Answer.  One  was  wounded  in  the  arm,  and  the 
other  in  the  thigh,  with  balls;  I  extracted  the 
balls. 

Question.  At  that  time  you  knew  a  man  had 
been  killed? 

Answer.  I  had  heard  it  at  Christiana  before 
that  ?  I  dont  know  how  long  before ,  an  hour 
perhaps ;  I  dont  know  as  to  the  time. 

Question.  Did  you  give  any  information  to 
have  these  men  arrested  ? 

Answer.    I  don't  know  that  I  did. 

Question.  Can  you  give  the  names  of  these 
colored  men  ? 

Answer.  I  believe  I  can.  One  was  Henry  C. 
Hopkins,  and  the  other  was  named  John  Long, 
I  think. 

Question.  Have  you  any  knowledge  of  any 
meetings  having  been  held  in  that  neighborhood 
in  regard  to  fugitive  slaves? 

Answer.    No,  sir. 

Question.  Have  you  knowledge  of  meetings 
having  been  held  in  regard  to  the  Act  of  Con- 
gress in  regard  to  fugitive  slaves  ? 

Answer.    I  don't  know  that  I  have,  specially. 

Question.  Had  you  knowledge  of  any  meet- 
ings in  which  that  was  considered,  though  called , 
for  other  purposes  ? 

Answer.    I  think  it  is  likely  I  had. 

Question.  State  where  the  meeting  was,  and 
when  ? 

Answer.    I  suppose  I  am  understood  properly 
that  the  fugitive  law  was  taken  into  consideration. 
Question.    You  were  at  it? 
Answer.  Yes. 

Question.    When  was  it  and  where  ? 

Answer.  It  was  at  Westchester,  at  the  Hor- 
ticultural Hall. 

Question.    How  far  is  that  from  Christiana? 

Answer.    Thirty  miles  perhaps. 

Question.  Were  there  speeches  made  at  that 
meeting  against  the  law  ? 

Answer.  There  were  speeches  disapproving 
of  the  law,  I  believe. 

Question.  Anything  said  about  harboring  the 
fugitive  slaves  ? 

Answer.  I  don't  recollect  that  anything  was 
said  of  that  kind. 

Question.  Look  at  that  notice  of  a  public 
meeting,  and  state  whether  you  were  at  it  ? 
(Notice  shown  him.) 

Answer.    I  was  not  at  it,  sir 

Question.  You  know  nothing  about  that 
meeting  yourself  ? 

Answer.    I  do  not,  sir. 

Question.  When  was  the  meeting  held  that 
you  attended  ? 

Answer.  I  can't  recollect  the  time,  I  can't 
state  how  long  before  this  occurrence. 

Question.    Was  it  published  in  the  papers  ? 


Answer.  I  think  it  is  likely  it  was,  I  don' 
recollect  how  I  received  the  information. 

Question.  Was  it  a  year  befere  this  occur- 
rence ? 

Answer.  I  can't  say,  I  don't  like  to  speak 
unless  I  know  certainly. 

Question.  We  want  the  best  of  your  recollec- 
tion as  to  the  time  ? 

Answer..  It  was  within  the  last  two  years  cer- 
tainly— my  memory  don't  serve  me  with  regard 
to  the  time. 

Question.    Did  you  see  the  resolutions  pub- 
lished in  the  papers  afterwards  ? 
Answer.    I  didn't. 

Question.  Who  was  Chairman  of  the  meet- 
ing ? 

Answer.    I  don't  recollect  that. 

Question.  Do  you  know  whether  Hanway 
was  present  ? 

Answer.  I  don't — I  don't  recollect  seeing 
him  at  it. 

Question.  Have  you  knowledge  of  other 
meetings  in  the  neighborhood  of  Christiana  or 
Penningtonville  ? 

Answer..    No,  sir. 

Question.  In  what  papers  in  Westchester  are 
the  proceedings  of  those  meetings  generally  pub- 
lished ? 

Answer.  I  dont  know  that  I  saw  the  pro- 
ceedings in  any  of  the  papers  ? 

Question.  Were  you  an  officer  of  that  meet- 
ing? 

Answer.    No,  sir. 

Question.  Do  you  know  an  officer  of  that 
meeting? 

Answer.    I  do  not. 

Question.  The  Fugitive  Slave  Law  was  pass- 
ed in  September,  1850 ;  the  meeting  was  after  its 
passage? 

Answer.  Yes. 

Question.  What  was  the  original  purpose  for 
which  the  meeting  was  called  ? 

Answer.    I  cant  tell  that. 

Mr.  G.  L.  Ashmead.  How  long  after  the  pas- 
sage of  that  law  was  it,  that  this  meeting  was 
held  ? 

Answer.    I  cant  tell. 

Question.    About  how  long? 

Answer.    I  cant  say. 

Question.  Can  you  say  it  was  within  three 
months  ? 

Answer.    I  cant  fix  the  time  of  it. 

Question.    Was  it  in  the  winter  or  spring  ? 

Answer.  I  should  think  it  was  in  the  spring; 
I  am  not  positive  of  it. 

Question.    Was  it  a  society  that  met? 

Answer.    I  believe  it  was. 

Question.    What  society  was  it? 

Answer.  I  understood  it  be  the  Anti-Slavery 
Society. 

Judge  Grier.  Are  you  speaking  of  the  Con- 
vention there? 

Answer.    It  was  the  Annual  Convention. 

Question.  You  cant  say  whether  Hanway  was 
there  ? 

Answer.    I  dont  recollect  seeing  him  there. 
Question.    Was  that  the  only  meeting  you  at- 
tended in  regard  to  this  subject  ? 


UNITED  STATES  V.  H  AX  AT  AY. 


101 


Answer.    The  only  one  I  recollect. 

Question.  In  what  paper  in  Westchester  are 
the  resolutions  of  that  society  generally  pub- 
lished ? 

Answer.  I  clont  know  if  any  resolutions  were 
were  adopted  at  that  meeting. 

Question.  Do  you  know  in  what  papers  in 
Westchester  the  resolutions  of  that  society  are 
generally  published? 

Answer.  I  am  not  aware  of  there  having  pub- 
lished any  of  the  proceedings  in  any  paper  in 
Westchester. 

Me.  Brent.    How  many  attended  in  that  con- 
vention from  Sadsbury  township  ? 
Answer.    I  cant  tell. 

Can  you  give  the  names  of  some? 
I  don't  know  that  I  can:  I  don't 


Question. 

Answer. 
recollect. 

Question. 

Answer. 

Question. 

Answer. 

Question. 

Answer. 

Question. 
side  yourself  ? 

Answer.  I  can't  tell,  I  was  there  as  a  specta- 
tor :  I  didn't  receive  any  invitation  to  go. 

Question.  In  whose  house  did  you  see  John 
Loner  ? 


Was  Elijah  Lewis  there? 
No,  sir. 

Was  Scarlett  there? 
I  dont  think  he  was. 

Was  Squire  Pownell  there  ? 
I  can't  rgjSpect. 

You  cazgflftate  who  was  there  be- 


Answer. 

Question. 
name  ? 

Answer. 

Question. 
slave  ? 

Answer. 

Question. 

Answer. 


In  a  tenant  house  of  mine. 
Do  vou  know  if  he  had 


mother 


No,  sir,  I  do  not. 
Do  you  know  if  he  was  a  runawav 


I  do  not 

Will  you  describe  his  appearance?  I 
I  dont  know  that  I  can  describe  him  | 
correctly,  I  had  only  known  him  a  short  time 
before  this  occurrence.     He  was  rather  light 
colored ;  he  was  called  a  short  man  perhaps,  and 
rather  thin. 

Question.   2  '  lie  tell  you  now  he  got  hurt  ? 
Answer.  He  did  not. 
Question.    Did  you  ask  him  : 
Answer.    I  did  not  ask  him  any  questions. 
Question.    How  long  did  he  remain  in  your  j 
tenant  house  ? 

Answer.    I  cant  tell  as  to  that.    I  left  after  J 
that.  Henry  C.  Hopkins  occupied  my  house.  He 
was  the  other  man  wounded,  a  colored  man. 

Question.  Do  you  know  when  Long  left  that  ! 
house  ? 

Answer.    I  do  not. 

Question.    Do  you  know  where  he  went  to  ? 
Answer.    I  do  not. 

Question.  One  of  the  wounded  men  was 
your  tenant  and  the  other  was  there  ? 

Answer. 
there. 


Question 
last? 
Answer. 
Question 


I  didn't  say  that  John  Long  resided 
When  did  you  see  either  of  them 


The  day  of  the  murder. 
This  was  in  the   forenoon  you 
dressed  their  wounds  ? 

Answer.  I  didn't  visit  them  afterwards. 
Question.    They  left  that  neighborhood  ? 


[     Answer.  Yes. 

Question.  Did  you  go  there  to  visit  them 
i  again? 

Answer.  Xo.  sir.  They  left  the  neighborhood 
'  immediately  after.    I  presume  so. 

Question.  How  do  you  know  they  left,  unless 
you  went  to  visit  them  ? 

Answer.  There  was  no  one  in  my  house  the 
afternoon  of  the  same  day :  it  was  tenantless. 

Question.    Where  did  John  Long  reside? 

Answer.  I  cant  tell,  I  saw  him  several  times 
before,  not  after. 

Question.    Did  he  live  in  that  neighborhood  ? 

Answer.    I  cant  tell  you  where  he  lived. 

No  cross-examination. 

John  Roberts  sworn,  (colored.) 

Examined  by  Mr.  George  L.  Ashmead. 

Question.    Where  do  you  reside  ? 

Answer.  About  a  mile  the  other  side  of 
Christiana  in  Smyrna. 

Question.    How  far  from  Parkers  house  ? 

Answer.    About  three  miles  I  suppose. 

Question.  How  long  has  it  been  since  you  have 
been  down  in  the  debtors'  apartment  in  Moya- 
mensing? 

Answer.    Seventy-two  days. 

Question.  Was  there  a  colored  man  there 
named  Josephus  Washington  and  another  named 
John  Clark? 

Answer.  Yes. 

Question.'  How  long  since  yon  saw  them  ? 
Answer.    I  dont  know  how  long,  I  guess  it 
has  been  three  weeks  though. 

Question.    What  became  of  them  ? 
Answer.    I  dont  know. 
Question.    Were  they  in  prison  with  you  ? 
Answer.    Yes,  in  the  same  place  I  was. 
Question.    Did  they  escape  from  prison? 
Answer.  Yes. 

Question.    How  did  they  escape  ? 
Answer.    I  dont  know. 

Question.    They  didn't  break  any  locks  or 
any  thing  of  that  kind  that  you  saw  afterwards  ? 
Answer.    Xo,  sir. 

Question.    Do  you  recollect  the  morning  of 
the  11th  September,  last  ? 
Answer.  Yes. 

Question.  Did  any  person  come  to  your  house 
that  morning? 

Anwee.    Yes,  Joseph  Scarlet,  a  white  man. 

Question.    What  time  did  he  come  there  ? 

Answer.  Just  about  sun  up,  he  was  on  horse- 
back. 

Question.  State  what  he  said  that  morning, 
as  far  as  you  recollect  it? 

Answer.  He  came  and  asked  for  my  father, 
and  my  mother  told  him  he  was  not  at  home,  and 
he  asked  where  he  was,  and  she  told  him  he  was 
at  William  Whitson's,  and  she  asked  what  was 
the  matter,  and  he  said  there  was  kidnappers  at 
Wm.  Parker's,  and  he  told  me  if  I  knew  of  any 
colored  people,  I  was  to  let  them  know. 

Question.  Did  you  let  any  colored  people 
know  ? 

Answer.  I  went  to  Joseph  More's,  to  let  his 
man  know,  but  there  was  none  of  them  at  home. 

Question.  What  did  you  do  yourself  that 
morning  ? 


102 


TREASON  CASES. 


Answer.  I  returned  home  from  Joseph  More's, 
and  started  to  go  down  to  Parker's  myself.  I 
borrowed  a  gun  from  Jacob  Townsend,  a  white 
man. 

Question.    Who  loaded  the  gun  ? 

Answer.    Jacob  Townsend. 

Question.  Did  you  tell  him  what  you  wanted 
the  gun  for  ? 

Answer.  1  told  him  there  was  kidnappers  at 
Wm.  Parker's.    I  didn't  tell  him  more  than  that. 

Question.  After  you  got  it,  what  did  you  do  ? 

Answer.  I  started  to  go  to  Wm.  Parker's  and 
got  as  far  as  George  Irvins  I  reckon  it  was 
about  8  o'clock  in  the  morning,  I  don't  know  ex- 
actly what  time  it  was. 

Mr.  Brent.  What  was  understood  when  it 
was  said  kidnappers? 

Mr.  Read.    John,  don't  answer  that. 

Mr.  Brent.  I  want  to  show  what  was  meant 
there  by  that  word. 

Judge  Grier.  I  take  it  every  body  knows 
that  it  is  a  slang  phrase  there,  for  men  in  search 
of  runaway  negroes. 

Samuel  Hanson  sworn,  (colored.) 

Examined  by  Mr.  G.  L.  Ashmead. 

Question.    Where  do  you  reside  ? 

Answer.  I  lived  at  Wm.  Ray's,  about  a  mile 
and  a  quarter  from  Christiana,  about  two  miles 
and  a  half  from  Parker's  house,  as  near  as  I  can 
tell. 

Question.  Were  you  over  at  Parker's,  on  the 
morning  of  the  battle  in  September  last  ? 

Answer.  Yes,  I  was  past  there.  I  don't 
know  what  time  it  was  when  I  got  there.  It  was 
a  while  after  sun-up. 

Question.  Did  you  get  there  after  the  fight 
was  over  ? 

Answer.  Yes. 

Question.    How  long  after  ? 

Answer.    I  don't  know. 

Question.    Did  you  see  a  good  many  persons 
there  ? 
Answer.  Yes. 

Question.    A  good  many  colored  persons  ? 
Answer.    Yes,  I  suppose  about  fifty. 
Question.    Were  they  armed  ? 
Answer.    Some  were. 
Question.    What  with? 
Answer.  Guns. 

Question.  Did  you  hear  firing  as  you  went 
towards  Parker's  ? 

Answer.    I  did. 

Question.    Much  or  little  ? 

Answer.  As  I  was  coming  down  the  lane,  I 
heard  a  good  bit. 

Question.    Did  you  see  Hanway  there  ? 

Answer.    I  did. 

Question.  Where  was  he  at  the  time  you  saw 
him? 

Answer.  I  saw  him  between  the  little  house 
and  Parker's  house. 

Question    What  house  is  that  ? 

Answer.  That  little  house  standing  on  the 
right  hand  side  going  up  towards  Parker' s* 

Question.  Is  it  nearer  Parker's  house  than 
the  creek  is  ? 

Answer.  Yes,  sir.  No  one  lives  in  it.  Is  is 
between  Parker's  and  the  creek. 


Question.    Where  did  you  see  him  ? 
Answer.     Between   that   little  house  and 
Parker's. 

Question.    That  was  in  the  long  lane  ? 
Answer.  Yes,  sir. 

Question.    Was  he  on  horseback  or  on  foot? 

Answer.    On  horseback. 

Question.    Which  way  was  he  going  ? 

Answer.  On  up  the  road  towards  Pownell's 
house,  and  towards  the  creek,  also. 

Question.  Is  Pownell's  house  in  the  long 
lane  ? 

Answer.    Yes,  sir. 

Question.    Beyond  the  creek? 

Answer.    Yes,  sir. 

Question.  How  far  were  you  from  him  when 
you  saw  him  ? 

Answer.    I  don't  know ;  I  can't  tell  how  far. 

Question.    Give  us  some  idea  of  the  distance. 

Answer.  I  suppose  I  was  about  five  or  six 
yards  from  him.  I  was  in  the  road  coming  along 
up  towards  the  house. 

Question.    Did  you  pass  Mr.  Hanway  ? 

Answer.    Yes,  I  did. 

Question.  Did  you  speak  to  him  as  he  passed  ? 
Answer.    No;  I  didn't. 
Question.    Had  you  any  arms  with  you  ? 
Answer.    No,  sir,  I  hadn't. 
Question.    Did  you  see  any  white  men  near 
Hanway  ? 

Answer.  I  don't  recollect  whether  I  did  or 
not. 

Question.  Did  you  see  any  colored  men 
behind  Hanway  in  the  road  ? 

Answer.  No.  There  was  some  standing  just 
above  him,  as  if  they  were  going  away,  like. 

Question.  Were  there  some  in  the  lane  behind 
him? 

Answer.  Yes,  there  was  some  behind  him 
right  up  the  little  lane,  when  I  saw  him. 

Question.  And  some  before  him  in  the  long 
lane  ? 

Answer.    No,  I  didn't  say  so. 

Question.    What  did  you  say  ? 

Answer.  I  said  I  didn't  see  any  colored 
people  after  him. 

Question.  Did  you  go  on  towards  Parker's 
house  ? 

Answer.  I  went  into  the  lane  a  little  piece, 
and  turned  round  and  came  out.  I  was  not 
there  long,  when  I  started  and  went  home. 

Question.  Did  you  see  the  body  of  old  Mr. 
Gorsu_h? 

Answer.    I  did. 

Question.    How  near  did  you  go  to  it  ? 
Answer.    I  suppose  I  was  about  a  yard  from 
him. 

Question.    Was  he  dead  or  alive  ? 
Answer.    I  dont  know. 

Question.  How  did  you  happen  to  go  there 
that  morning  ? 

Answer.  I  first  in  the  morning  before  I  went 
there,  went  to  Christiana  to  get  a  pair  of  boots, 
at  the  shoemaker's,  and  the  shoemaker  was  not 
up,  and  I  hallooed,  and  he  came  clown,  and  I 
asked  him,  and  he  said  he  hadn't  any  boots  for 
sale,  and  I  asked  him,  if  they  had  any  at  the 
store,  and  he  said  he  didn't  know  ;  and  I  asked 


EXITED  STATES  V.  TTAWAY. 


103 


him,  and  lie  told  ine  the  store-keeper  lived  in 
the  house  of  Mr.  Pownell,  and  I  goes  to  the 
hack  kitchen  and  knoekel,  and  nobody  an- 
swered, and  I  went  on  to  the  front  porch,  and 
staid  there  a  good  while,  and  as  I  was  sitting 
there,  a  man  came  along,  and  said  there  was 
kidnappers  at  Parkers,  and  I  sat  thire  still,  and 
he  went  on,  and  then  he  came  past  again,  and  I 
asked  him  if  it  was  so.  and  he  said  it  was,  and  I 
went  on  to  "William  Rays.  That  was  a  white 
man,  and  his  name  was  George  Pownell :  he  was 
a-foot.  He  was  going  from  Parker's  house 
when  1  first  saw  him,  and  he  came  np  the  road 
past  me,  and  told  me  they  were  there,  and  went 
on  past  me.  and  after  a-bit  came  back,  and  I 
asked  him  if  it  was  so,  and  he  said  it  was  ;  that 
he  heard  them  making  a  great  hallooing,  and 
b:  owing  a  horn. 

Question.  When  you  first  saw  him  was  he 
going  towards  or  away  from  Parkers  house  ? 

Answer.  He  was  coming  to  Christiana,  which 
was  going  away  from  Parkers  house ;  he  came 
past  me. 

Question.  Then  he  was  going  towards  Par- 
ker's house. 

Answer.  No,  he  was  coming  to  Christiana 
when  he  came  past  me.  I  was  setting  on  the 
store  porch ;  it  is  on  the  out-edge  of  Christiana 
like,  where  I  first  saw  him  coming  to  Christiana, 
and  he  passed  me,  andhe  said  there  was  kidnappers 
at  Parkers,  and  I  dont  know  what  I  said,  and  he 
went  on  towards  the  big  house,  and  after  a  bit 
I  saw  Mm  come  past  me  again,  and  I  asked  him 
if  it  was  so,  and  he  said  it  was. 

Question.    Which  way  was  he  going  then? 

Answer.  Then  he  went  on  to  the  same  road 
past  this  house. 

Question.  Did  he  go  towards  Parker's  when 
he  passed  you  the  second  time  ? 

Answer.    He  did  not. 

Question.  He  went  towards  this  big  house  of 
Pownelr's  ? 

Answer.    Xo.  sir. 
Cross-examined. 

Question.    Do  you  work  for  Isaac  More? 
Antswer.    No,  sir. 

Question.  Did  you  work  at  his  threshing  ma- 
chine? 

Answer.    2So,  sir. 

Questions    Were  you  there  that  day? 

An'Swer.    Xo,  sir  :  no  part  of  the  day. 

Question.  You  got  there  after  all  the  firing  was 
oxer  :  there  was  no  firing  after  you  were  there  ? 

Answer.    No,  not  while  I  was  there. 

Mr.  Read.    Where  did  you  see  Hanway? 

Answer.  I  saw  him  in  the  lane,  between 
Parker's  house  and  the  little  house. 

Question.    Are  you  positive  about  that '? 

Answer.  Yes.  sir. 

Question.  Was  it  towards  the  north  or  south? 

Answer.  It  was  above  that  little  house.  I 
don't  know  whether  it  was  to  the  north  or  south. 
It  was  on  that  side  of  the  river. 

Question.    X ear  an  orchard  ? 

Ants  wee.    Yes.  near  an  orchard. 

Question.    Which  way  was  the  horse's  head? 

Answer.  I  dont  recollect  now  which  way  the 
horse's  head  was. 


That  is  all  I  saw. 

Whereabouts  is  Mr.  Ray's  ? 
About  11  miles  from  Christiana. 

Are  vouthe  son  of  Samuel  Han- 


Question.  Was  he  ri'ding  fast  or  standing 
still? 

Answer.  I  don't  recollect  whether  he  was  or 
not.  I  think  he  was  riding,  and  going  down  by 
the  creek. 

Question.  That  is  all  you  saw  on  that  occa- 
;  sion  ? 

Answer. 
Question. 
Answer. 
Question. 
son  ? 

Answer.    Yes,  sir. 

Mr.  Brent.  Did  I  understand  you  to  say  you 
went  to  get  shoes  V 

Mr.  Read.  I  object  to  a  cross-examination 
on  the  part  of  the  United  States,  after  he  is 
handed  over  to  us  after  the  examination-in-chief, 
unless  it  is  something  new  that  we  have  gone 
over.  It  is  not  fair  for  the  prisoner,  nor  is  it 
the  mode  of  practice  in  any  Criminal  Court, 
whatever.  The  United  States  go  through  with 
their  task,  and  we  CTOSs-exaniine.  If  they 
wish  to  know  any  thing  in  regard  to  what  we 
have  advanced  in  our  cross-examination,  that  is 
very  well :  but  to  go  over  the  whole  ground,  and 
repeat  the  same  thing  over  again,  is  depriving 
;  us  of  cross-examination  altogether 

Mr.  Brent.  The  gentleman's  ideas  of  fairness 
are  those  which  suit  himself  and  his  own  views  ; 
I  and  I  think  they  are  wholly  unnecessary.  I  say, 
that  if  a  cross-examination  leaves  a  confused 
impression,  nothing  is  more  fair  and  legitimate 

•  than  to  examine  further  into  the  meaning  of  the 
witness.  First.  I  wanted  to  understand  where 
this  transaction  of  George  Pownell,  (having  passed 

■  and  repassed  him.  !  -where  it  took  place.  First, 
he  says  it  took  place  near  Parker's  house,  and 
secondly,  near  Christiana.    The  cross-examina- 
;  rion  has  left  that  confused.    Then,  with  regard 
to  Hanway  being  at  the  orchard.    It  may  have 
;  been  that  Hanway  returned,  after  going  up  the 
!  lane,  he  might  have  returned  to  the  orchard.  I 
say  to  your  Honors,  it  may  be  possible.  The 
!  witness  says  he  saw  Hanway  between  the  creek 
;  and  Parker's  house,  and  that  there  was  no  firing: 
:  while  there  is  testimony  to  show  that  there  was 
I  firing  as  he  passed  up  the  long  lane,  and  that 
i  there  was  a  crowd  of  negroes.    And  unless  the 
]  Court  rules  it  out,  I  shall  consider  I  have  a  per- 
:  feet  right  to  put  the  question. 

Mr.  Read.    I  did  not  ask  one  word  about 
;  George  Pownell :  we  left  that  to  the  examination- 
:  in-chief.    I  cross-examined  where  Hanway  was 
i  about  that  time,  and  where  he  could  be  found, 
j  for  the  purpose  of  showing  that  the  witness  had 
'  made  a  mistake.    The  object  is  to  begin  again, 
|  because  the  witness  has  contradicted  himself,  in 
|  order  to  try  and  make  out  of  him  a  straight  story. 
"What  is  the  benefit  of  a  cross-examination,  if  we 
find  that  we  are  to  go  over  the  same  ground 
again,  and  that  the  United  States  is  to  begin  a 

•  second  cross-examination?  What  is  the  object 
I  of  a  cross-examination?  It  is,  that  we  may  see 
I  by  the  mode  or  manner  of  a  witness,  his  want  of 

knowledge,  and  his  ignorance  of  stated  facts, 
which  have  been  stated  by  other  witnesses.  It 
is  not  for  the  United  States,  after  having  ex.- 


TREASON  CASES. 


104 


amiued  upon  all  points  they  think  proper,  to  go 
over  the  ground  again,  and  build  him  up.  No 
one  has  a  right,  when  the  edifice  is  reared  up, 
to  throw  it  down  again.  No  man  has  a  higher 
respect  than  I  have  for  the  Attorney  General 
who  has  come  here  to  prosecute  for  the  United 
States.  I  say  no  man  has  a  higher  respect  than 
I  have.  He  comes  here  to  prosecute  in  this  case 
on  the  part  of  the  United  States.  I  have  nothing 
to  do  with  that,  but  I  do  say  that  the  proper  mode 
of  examination  is,  Avhen  you  have  gone  through 
with  a  witness,  and  there  is  nothing  upon  the 
cross-examination  that  varies  from  the  original 
examination,  you  are  not  to  go  to  matters  that 
are  left  in  the  same  condition  as  they  were 
before.  If  the  witness  is  confused,  that  is  our 
benefit,  evidently.  It  is  the  right  of  the  prisoner 
to  let  the  Court  and  jury  see  what  he  is.  If  he 
is  an  unintelligent  man,  or  if  he  is  not  telling 
the  truth,  or  if  he  is  telling  the  facts  in  a  con- 
fused manner,  he  is  not  to  be  bolstered  up.  We 
don't  know  the  story  that  he  tells  out  of  Court 
is  different  from  the  story  he  tells  on  the  wit- 
ness stand.  We  don't  know  that.  There  is  no 
use  of  a  viva  voce  examination  if  the  whole  benefit 
of  a  cross-examination  is  turned  away  from  us, 
and  the  United  States  is  to  begin  and  go  over  the 
whole  ground  again. 

Mr.  Brent.    I  think  I  have  a  right. 

Mr.  Read.  I  have  a  right  to  make  the  con- 
clusion, if  it  pleases  the  Court. 

Mr.  Brent.  I  think  after  what  has  been  said 
I  have  a  right  to  make  some  remarks.  The 
counsel  has  said  I  am  here  on  behalf  of  the 
State  of  Maryland,  to  aid  in  this  prosecution. 
The  reason  I  am  here,  is  a  matter  that  I  intend 
to  leave  until  I  shall  have  an  opportunity  to  de- 
fine myself  more  fully  before  the  Court  and  jury 
I  am  here  under  the  instruction  of  the  executive 
of  Maryland,  because  the  people  of  Maryland 
feel  a  deep  interest,  not  in  a  prosecution  or  an 
unjust  conviction,  but  to  see  that  justice  is  done 
to  the  memory  of  a  deceased  citizen,  and  to  the 
laws  of  the  United  States,  if  they  have  been  vio- 
lated, for  she  has  a  kindred  interest  in  them  with 
the  rest.  I  am  to  transmit  official  reports  to  the 
State  of  Maryland,  and  to  attend  to  her  interests 
here.  I  am  not  here  in  distrust  of  the  authori- 
ties of  the  United  States,  but  by  invitation  of  the 
authorities  of  the  United  States  ;  and  am  free 
to  act  as  counsel  in  this  matter.  1  merely  wish 
to  state  that  I  do  not  desire  (and  I  thank  the 
gentleman  for  having  disclaimed  it)  to  bolster  up 
a  perjured  witness,  or  because  he  is  confused,  or 
telling  a  falsehood.  The  most  honest  witness, 
under  cross-examination,  becomes  confused,  and 
his  account  is  often  unintelligible.  Is  a  counsel 
to  cross-examine  an  honest  witness,  so  that  it 
leaves  a  confused  account  on  the  minds  of  the 
jury  ?  Is  the  door  of  the  edifice  to  be  closed,  as 
to  further  inquiry,  and  as  to  the  facts  of  the 
case  ?  If  a  witness  cannot  rescue  himself  ho- 
nestly and  fairly  before  the  jury  and  the  public, 
let  his  testimony  fall,  and  none  will  be  more 
satisfied  than  the  officers  and  counsel  who  repre- 
sent the  United  States.  I  only  give  the  witness 
a,  chance  to  set  himself  right,  if  he  can  do  it. 

Mr.  Read.     All  these  re-examinations  are 


cross-examinations.  They  begin,  or  ought  to  be- 
gin, (though  I  do  not  wish  to  dictate)  by  letting 
the  witness  tell  his  own  story.  If  he  cannot  do 
that,  have  they  a  right  to  assist  him?  But  if  he 
has  gone  through  his  evidence,  and  they  have 
asked  him  every  question  they  think  proper,  and 
the  cross-examination  does  not  lead  him  from 
the  legitimate  purpose,  it  is  not  proper  to  begin 
a  re-examination,  in  the  form  of  a  cross-exami- 
nation. Because  they  begin  by  putting  their 
questions  as  leading  questions,  suggesting  what 
has  already  been  said,  and  not  what  he  intended 
to  say.  Under  these  circumstances,  what  is  the 
use  of  a  cross-examination  ?  It  will  be  better  to 
let  the  United  States  exhaust  their  leading  ques- 
tions, and  then  to  have  our  cross-examination 
afterwards.  I  submit  that  this  is  the  only  pro- 
per way  of  doing  it. 

Judge  Grier.  You  seem  to  differ  not  at  all 
in  theory.  You  are  both  right.  As  to  the  irregu- 
larity of  questioning  after  a  cross-examination, 
the  prisoner's  counsel  is  undoubtedly  correct. 
Namely,  that  you  cannot  begin  to  examine 
him  all  over  again,  so  that  you  may  have  your 
story  repeated  again,  because  it  would  only 
bring  more  last  words  from  the  other  side. 
It  is  also  true,  as  stated  by  the  Attorney  Ge- 
neral, that  where  a  witness  has  said  something 
in  his  cross-examination  that  conflicts  with  the 
examination-in-chief,  he  has  a  right  to  point 
it  out,  and  see  how  it  has  happened,  and  to  see 
whether  he  can  explain  it  or  not.  Because 
the  best  witness  in  the  world  may,  by  a  sharp 
cross-examination,  say  things  which  are  appa- 
rently contradictory,  which,  (if  it  were  asked 
him)  he  would  be  able  to  explain  immediately. 
That,  however,  should  not  be  come  at  by  repeat- 
ing over  again  all  that  he  has  said  before.  But 
the  United  States  counsel  certainly  have  a  right 
to  point  out  to  him  if  he  appears  to  have  made 
any  mistake,  and  let  him  explain  what  he  does 
intend  to  say,  if  he  has  said  two  contradictory 
things.  What  the  nature  of  the  question  was,  I 
really  don't  know. 

Mr.  Read.  The  question  began  about  George 
Pownell,  of  which  we  asked  him  nothing.  I  take 
that  to  be  entirely  irregular,  because  we  said  not 
a  word  about  it. 

Mr.  Brent.  The  question  was  proposed  where 
he  had  seen  him ;  whether  it  had  been  in  the 
neighborhood  of  Parker's  house  or  at  Christiana. 
He  did  not  make  himself  intelligible  in  the  cross- 
examination  at  all. 

Judge  Grier.  He  mentioned  some  man  where 
he  went  to  buy  boots. 

Mr.  Read.  We  left  that  upon  the  exaininati on- 
in-chief,  may  it  please  your  Honors. 

Judge  Grier.  If  there  is  anything  obscure, 
the  question  can  be  ashed. 

Mr.  Brent.  I  understand  you  saw  him  in 
Christiana  ? 

Answer.    I  did. 

Question.    It  was  at  Christiana  ? 
Answer.    It  was. 

Question.  He  had  come  from  the  direction  of 
Parker's,  had  he  ? 

Answer.    Yes,  he  did. 

Question.    About  Hanway's  being  by  the  or- 


UNITED  STATES  V.  HANWAY. 


105 


chard  ;  when  you  first  savr  him,  you  heard  no 
firing.  After  you  saw  Hanway  ride  on  his  horse 
near  the  orchard,  you  heard  no  firing  after  that  ? 

Answer.    Not  that  I  recollect  of. 

Question.    He  rode  up  and  crossed  the  field  ? 

Answer.    I  suppose  he  did. 

Question.  Did  you  see  any  vrhite  men  run- 
ning ? 

Answer.  There  was  one  came  past  after  I 
got  to  to  the  little  house. 

Question.    Have  you  ever  seen  him  since  ? 

Answer.    I  don't  know  that  I  have. 

Question.    Was  he  pursued  by  a  negro  ? 

Answer.  I  do  not  know  whether  he  was  or 
not. 

Mb.  Read.  Does  your  Honor  see  what  it  is 
coming  to  ? 

Mr.  Brent.    That  is  all,  I  have  done,  sir. 

Judge  Grier.  Have  the  prisoner's  counsel 
any  questions  to  ask  the  witness  ? 

Mr.  Read.  No,  sir,  we  have  no  questions  to 
ask. 

Jacob  "Wood  sworn. 

Mb.  G-.  L.  Ashmead.  Where  did  you  reside 
before  you  came  down  to  Philadelphia;  and 
when  you  were  at  home  ? 

Answer.  At  Lancaster.  At  Jacob  Moore's 
I  made  my  home,  but  I  worked  at  Mr.  Cooper's 

Question.    How  far  from  Christiana  ? 

Answer.  I  do  not  know.  I  cannot  tell  how 
far. 

Question.    How  far  from  Parker's  house  ? 

Answer.  There  are  two  farms  betwixt  it  and 
Parker's  house,  like. 

Question.  Do  you  recollect  the  morning  of 
the  battle  in  September  last  ? 

Answer.  I  mind  what  morning  it  was,  but  I 
don't  mind  what  day  of  the  month  it  was. 

Question.  What  occurred  to  you  on  that 
morning  ?  Go  on,  and  state  to  the  Court  and 
jury. 

Witness.  What  occurred  !  I  don't  understand, 
what  took  place? 

Judge  Grier.  Don't  give  him  any  Latin:  talk 
Saxon  to  him.  He  don't  know  what  occurred  means. 

Mb.  G.  L.  Ashmead.  What  took  place  on  that 
morning  ? 

Answer.  I  was  at  work  at  Mr.  Cooper's,  and 
was  going  to  take  up  potatoes,  and  Mr.  Lewis 
came  along  and  informed  me  that  Mr.  Parker's 
was  all  surrounded  by  kidnappers,  and  I  went 
along  with  him  over  there. 

Question.    What  further  did  he  say  ? 

Answer.  .  He  did  not  say  any  thing  more.  I 
don't  recollect  any  thing  more. 

Question.  What  time  in  the  morning  was  it 
when  he  came  there  ? 

Answer.    It  was  before  breakfast. 

Question.    Was  it  before  or  after  sun-up  ? 

Answer.  It  was  after  sun-up. 

Question.    After  sun-up  ? 

Answer.  Yes.  sir. 

Question.  Was  any  thing  said  at  the  time 
about  taking  potatoes  up,  in  connection  with  Mr. 
Lewis  ? 

Answer.    He  told  me  it  was  no  time  to  take  j 
up  potatoes,  when  Mr.  Parker's  house  was  all 
Burrounded  by  kidnappers.  1 


Question.  You  went  with  him  over  there, 
did  you  1 

Answer.  Yes.  sir. 

Question.  What  took  place  when  you  got 
there  ? 

Answer.  First,  I  seen  the  Marshal,  I  believe 
it  is  ;  and  Mr.  Hanway  was  on  his  horse,  and  the 
Marshal  was  standing  near  him.  I  believe  he 
was  talking  to  him.    I  passed  them. 

Question.    Did  you  pass  close  to  him  ? 

Answer.  Not  right  close  to  him  I  did  not 
pass. 

Question.    You  did  not  pass  close,  you  say  ? 
Answer.    No,  sir. 

Question.  Did  you  hear  any  thing  of  the  con- 
versation between  them  ? 

Answer.  No,  sir;  I  did  not  hear  any  thing~that 
was  said  at  all,  sir. 

Question.    Did  you  hear  the  firing,  then  ? 

Answer.  I  heard  the  noise,  and  seen  the 
smoke. 

Question.  How  far  off  were  you,  when  you 
heard  the  noise  and  saw  the  smoke  ? 

Answer.  I  went  to  look  what  was  going  on,, 
and  the  firing  took  place,  and  it  kind  o'  scared 
me,  and  I  run  away  off.  towards  the  barn. 

Question.  When  you  first  saw  Hanway  and 
the  Marshal  together,  where  were  they? 

Answer.    At  the  end  of  the  lane. 

Question.    At  the  end  of  the  lane  ? 

Answer.    Yes,  sir. 

Question.  You  have  said  you  went  towards- 
the  barn  ? 

Answer.    Yes.  sir. 

Question.    Did  you  remain  there  at  the  barn  ? 

Answer.  I  got  over  into  a  cornfield,  and 
came  out  into  the  road  into  the  woods,  along- 
side the  woods. 

Question.  Was  that  down  in  the  direction  of 
the  creek  ? 

Answer.    No.  sir. 

Question.  It  was  not  in  the- direction  of  the 
creek  ? 

Answer.    No,  sir. 

Question.    Did  you  remain  there  or  leave 

Answer.  I  went  straight  to  Jacob  Moore's 
where  I  got  my  washing  done. 

Mr.  G.  L.  Ashmead.    That  is  all,  now. 

The  witness  was  not  cross-examined. 

Dickinson  Gorsuch  recalled. 

Mb.  G.  L.  Ashmead.  State  whether  that  is 
the  coat  your  father  wore  on  that  occasion. 

Answer.    That  is  the  coat. 

Question.  Have  you  your  vest  here,  and  that 
hat,  sir? 

Answer.    Yes,  sir. 

Mr  G.  L  Ashmead  here  shows  the  coat  of  the 
deceased  Gorsuch,  and  the  vest  of  Mr.  Dickinson 
Gorsuch,  and  the  hat  of  Dr.  Peirce.  It  was  a 
low-crowned,  short  rimmed  straw  hat,  with  a 
piece  of  black  ribbon  around  it,  rather  narrow. 
There  was  a  hole,  having  been  occasioned,  as 
stated  in  the  evidence  for  the  United  States,  by  ;k 
bullet  having  passed  through  just  above  Dr. 
Pierce's  scalp.  The  coat  presented  a  shattered 
appearance  near  the  left  arm,  and  the  vest  was 
much  torn. 

Mr.  G.  L.  Ashmead.    We  close  the  testimony 


106 


TREASON  CASES. 


(with  this  witness)  in  this  case,  on  the  part  of 
the  United  States. 

Mb.  Read.  Your  honors  are  aware  it  becomes 
our  province  to  open  on  the  part  of  the  defence ; 
but  as  one  of  our  colleagues  is  absent,  (though 
he  will  be  here  to-night)  and  though  we  should 
be  very  glad  to  begin,  we  would  much  prefer  his 
presence  in  Court. 

Judge  Grier.    Is  he  to  open? 

Mr.  Cuyler.  I  have  to  open,  but  could  not 
close  before  the  time  to  adjourn  this  session,  and 
I  would  like  to  have  an  opportunity  of  conference 
with  my  colleagues. 

Judge  Kane.  I  believe  one  of  the  counsel  on 
each  side  is  absent  from  public  duty,. 

Judge  Grier.  I  began  with  an  intention  to 
pay  ample  attention  to  all  sides.  The  only  ques- 
tion is  one  of  time,  and  the  gentlemen  of  the 
jury  may  think  I  am  trifling  with  their  time,  for 
I  have  been  spoken  to  with  regard  to  a  night  ses- 
sion, by  some  one. 

Mr.  Cuyler.  I  believe  it  will  shorten  the 
matter,  as  it  will  give  me  an  opportunity  of  con- 
densing what  I  may  have  to  say. 

Judge  G-rier.  Notwithstanding  my  great  pres- 
sure to  be  somewhere  else,  I  have  determined  to 
give  this  case  a  thorough  examination,  and  there- 
fore am  disposed  to  give  all  parties  every  advan- 
tage. Hence,  I  adjourned  on  Thanksgiving  Day 
so  that  the  counsel  for  the  United  States  might 
have  a  chance  to  prepare  his  opening,  and  I" 
suppose  it  is  nothing  but  fair  that  I  should  ex- 
tend the  same  to  you  till  to-morrow. 

Mr.  Cuyler.  We  will  get  through  the  case 
this  week. 

Mr.  Read.  Your  Honors  are  aware  that 
taking  no  notes,  we  have  to  depend  upon  the 
Reporters  ;  and  if  it  were  not  for  them  we  should 
not  be  so  far  advanced  by  two  days,  as  we  are 
now.  I  believe  the  District  Attorney  case  would 
have  taken  three  times  as  long,  had  this  plan  not 
been  adopted. 

Judge  Grier.  These  young  gentlemen  are 
getting  of  a  great  deal  of  importance.  I  make  it 
a  practice  now  never  to  take  a  note,  and  I  never 
intend  to  in  any  case  in  which  I  may  sit  again. 

Mr.  Cuyler.  Your  Honors  will  also  remem- 
ber the  benefits  derived  from  it  in  the  Woodworth 
Patent  Case. 

Mr.  Read.  It  is  often  necessary  also  to  take 
the  charge  of  the  Court  when  not  written,  as 
you  can  get  it  in  the  precise  words,  or  nearly  so. 

Judge  Kane.  I  hope  the  counsel  engaged  in 
this  case,  now  absent  in  Washington,  will,  when 
they  return  there,  after  the  case  closes,  suggest 
the  propriety  of  adding  another  officer  to  this 
Court:  to  act  as  Reporter;  it  would  save  the 
United  States  a  great  deal  more  than  they  would 
have  to  pay  such  an  officer  for  his  services  dur- 
ing the  time  he  was  in  attendance. 

The  Court  is  adjourned  till  to-morrow  morning 
at  10  o'clock  A.M. 


Tuesday,  December  2,  1851. 
The  Court  opened  at  Ten  a.  m. 

PRESENT  JUDGES  GRIER  AND  KANE. 

Empanneled  jurors  are  called  and  answer  to 
their  names. 

Mr.  R.  R.  Smith.  Mr.  John  Richardson  was 
excused  till  this  morning,  and  I  have  requested 
him  to  be  here  now.  He  is  President  of  the 
Bank  of  North  America,  and  I  presented  a  phy- 
sician's certificate  to  your  honors. 

Judge  Grier.    Does  he  wish  a  further  ex- 
cuse ? 

Mr.  R.  R.  Smith.  He  does,  if  your  honors 
will  grant  it  to  bim.  He  is  President  of  the 
bank,  and  when  the  Board  is  not  in  session,  he 
is  the  only  one  authorized  to  discount. 

Judge  Kane.  Could  it  not  be  exercised  by 
proxy  ? 

Mr.  Smith.  Not  readily.  If  your  honors  will 
excuse  him  on  Mondays  and  Thursdays,  which 
are  the  discount  days  of  the  bank. 

Judge  Kane.  He  will  be  excused  till  Monday: 
there  are  others  in  similar  positions,  who  are 
excused  till  then. 

Judge  Grier.  "We  have  made  it  a  rule  not  to 
excuse  a  man  merely  on  account  of  private  busi- 
ness. 

Mr.  Smith.  If  I  might  suggest  to  your  Honors 
to  excuse  him  till  Tuesday,  as  Monday  is  the  dis- 
count day. 

Excused  till  next  Tuesday. 

Mr.  Read.  I  suppose  now  is  the  proper  time 
to  ask  your  Honors  for  a  Habeas  Corpus  to  bring 
into  Court  the  body  of  Elijah  Lewis. 

Judge  Grier.  It  will  be  issued  and  the  Marshal 
will  have  him  brought  up  immediately. 

Mr.  Cooper.  I  understand  that  it  is  desirable 
on  the  part  of  the  prosecution,  and  the  counsel 
have  requested  me  to  bring  it  before  the  Court, 
to  examine  a  witness  whose  testimony  was  over- 
looked at  the  conclusion  of  the  case  yesterday. 
I  believe  it  will  take  but  five  minutes.  It  is  to 
prove  that  at  the  time  of  his  death,  Edward  Gor- 
such  was  in  the  possession  of  a  considerable 
amount  of  mone}%  which  when  the  body  was  found 
was  not  in  his  possession.  I  dont  know  who  the 
witness  is  that  proves  it.  I  believe  one  witness 
proves  both  facts. 

Judge  Grier.  Of  course,  if  the  counsel  had 
overlooked  anything  material  and  the  opposite 
party  had  not  opened  his  case,  we  would  suffer 
you  to  offer  it  now,  if  there  is  no  objection  to  it. 

Mr.  Stevens.    We  do  object  to  it. 

Judge  Grier.  The  charge  of  murder  would 
not  be  affected  by  a  robbery  committed  upon  the 
body  of  the  man  murdered. 

Mr.  Cuyler.     We  do  not  object  upon  the 
'  ground  that  they  have  closed  their  case,  but  upon 
the  ground  that  your  Honor  has  mentioned. 

Judge  Grier.  I  dont  think  it  would  add  to 
•  the  case  in  any  degree. 

Mr.  Cooper.    We  do  not  insist  upon  it. 

Mr.  Theodore  Cuyler  opened  for  the  defence, 
as  follows : — 

May  it  please  the  Court,  Gentlemen  of  the 
Jury.  I  congratulate  you,  Gentlemen  of  the 
Jury,  that  we  have  reached  one  of  those  land- 


UNITED  STATES  V.  HANWAY. 


107 


marks  in  the  progress  of  this  cause,  which  assures 
us  that  its  end  cannot  be  far  distant.  The  Gov- 
ernment  has  closed  its  case.  What  it  could 
prove  to  sustain  this  grave  charge  against  the 
prisoner  at  the  bar,  it  has  proven,  and  if  the 
evidence  has  affected  your  minds  as  it  has  mine, 
you  have  listened  with  painful  surprise,  that  a 
charge  so  grave  has  been  founded  upon  evidence 
so  weak.  You  have  wondered,  as  you  listened, 
that  this  man  has  been  taken,  upon  such  evi- 
dence, from  his  quiet  home,  with  all  its  endear- 
ments, and  compelled  to  spend  so  many  sad  and 
weary  hours  in  the  loneliness  of  his  cell,  await- 
ing an  uncertain  future,  and  a  trial  upon  an 
almost  unheard-of  charge,  to  be  supported  by 
evidence  of  the  nature  of  which  he  scarcely 
kneAV. 

It  will  be  my  duty,  gentlemen,  before  I  sit 
down,  to  review  some  portions  of  the  testimony 
offered  by  the  Government,  and  to  point  out  to 
you  its  total  inadequacy  to  sustain  the  charge  of 
high  treason :  to  open  to  you  the  prisoners  de- 
fence, and  to  explain  to  you  those  matters,  both 
of  law  and  of  fact,  which  when  passed  upon  by 
your  judgment,  will,  he  confidently  hopes,  in- 
sure his  acquittal. 

This,  gentlemen,  is  no  ordinary  prosecution ; 
it  presents  no  ordinary  features.  Apart  from 
the  interest  it  derives  from  the  fact  that  it 
involves  both  the  good  name  and  the  life  of  the 
prisoner  at  the  bar ;  apart  from  the  fact  that 
public  interest  and  public  feeling  are  so  deeply 
enlisted;  and  that  so  many  watchful  eyes  are 
upon  us  to-day ;  and  apart  from  the  serious  and 
unusual  nature  of  the  charge  you  are  sworn  to 
try — it  has  another  point  of  deep  interest. 

The  State  of  Maryland  is  here  to-day,  in  the 
person  of  her  Attorney  General,  and  his  coad- 
jutors,— a  private  prosecutor  in  a  criminal 
cause.  Far  be  it  from  me  to  say,  that  she  thirsts 
for  the  blood  of  this  man ;  and  yet  I  have  seen 
events  occur  upon  the  trial  of  this  case,  which 
might  almost  justify  this  remark. 

It  has  ever  been  the  merciful  doctrine  of  the 
law,  that  the  sworn  officer  of  the  law,  its  public 
prosecutor,  was  not  justified  in  exhibiting  the 
partizan  zeal  of  private  counsel,  in  pressing  for 
a  conviction.  His  duty  was  to  aid  the  court  in 
doing  justice,  to  seek  the  disclosure  of  the  whole 
truth,  whether  it  make  for  or  against  the  Com- 
monwealth ;  in  short,  to  seek  mercy,  not  sacri- 
fice ;  justice,  not  a  conviction.  How  has  it  been 
in  this  cause  ? 

Mr.  Ashmead,  the  proper  officer  of  the  Gov- 
ernment, who  brings  to  every  public  and  every 
professional  duty,  as  we  are  of  the  Philadelphia 
Bar  well  know,  at  once  the  highest  professional 
skill  and  the  most  manly  frankness  and  candor, 
is  in  the  back  ground.  Our  friends  from  the 
State  of  Maryland,  for  whom  no  gentleman  en- 
tertains a  higher  respect  than  I  do,  are  in  the 
foreground.  Maryland  distrusts  the  justice  of 
Pennsylvania — she  distrusts  the  faithfulness  to 
their  sworn  duty  of  the  officers  of  the  General 
Government.  She  is  here  to-day  by  her  own 
counsel,  in  what  she  regards  as  her  own  case. 
As  a  natural  result,  we  have  witnessed  precisely 
what  experience  taught  us  we  might  expect. 


This  cause,  involving  the  momentous  issues  of 
life  and  death,  has  been  tried  as  if  it  were  a 
private  cause.  In  a  panel  of  ninety-two  attend- 
ing jurors,  the  prisoner,  entitled  to  thirty-fouu 
challenges,  challenged  twenty-four — while  the 
Government  (exercising  a  right  by  the  most 
recent  cases  denied  to  a  public  prosecutor  in 
England)  set  aside  thirty-six  jurors.  In  the 
conduct  of  the  cause  the  zeal  of  private  counsel 
has  been  exhibited — discharged  witnesses  have 
been  recalled,  and  cross-examined  witnesses 
have  been  re-examined  in  chief — the  opinions 
and  impressions  of  witnesses  have  been  asked 
for  and  put  in  proofs  as  facts.  And  yesterday 
it  was  offered  and  received  in  proof  to  affect  the 
prisoner,  that  by  the  lying  lips  of  Henry  11. 
Kline,  the  prisoner  and  his  fellow-prisoner,  Eli- 
jah Lewis,  were  charged  in  the  vile  profanity  of 
that  miserable  creature  with  what  Kline  knew, 
and  this  prosecution  admits,  was  a  lie ;  and  his 
silence  (Lewis  denying  the  assertion)  is  to  be 
tortured  into  a  tacit  admission  of  the  truth  of 
that  which  the  prosecution  itself  admits  is  a 
false  charge.  Sir,  I  take  back  my  words.  The 
State  of  Maryland  does  thirst  for  blood,  or  else 
this  cause,  inadmissible  even  in  Quarter  Ses- 
sions practice,  would  not  have  been  tried. 

We  mention  these  things  not  reproachfully  of 
the  Court.  From  them,  at  all  times,  it  is  my 
pleasure  to  admit  we  have  received  the  most 
impartial  justice,  tempered  with  the  truest  kind- 
ness. It  has  been  so,  because  we  have  permitted 
it  to  be  so.  We  have  permitted  it  to  be  so  be- 
cause we  knew  well  the  perfect  innocence  of  our 
client.  W e  had  nothing  to  conceal — but  sought 
only  the  fullest  exposure  of  the  truth — and 
above  all,  and  beyond  all — we  knew  the  strength 
of  our  own  cause,  and  we  were  resolved,  here, 
in  this  Court,  to  prove  this  to  be  the  most  absurd 
and  groundless  prosecution  ever  instituted  in 
this  or  any  other  Court  of  Justice  ?  Strong  lan- 
guage, gentlemen !  Bear  with  me  until  I  close 
my  case,  and  so  as  I  sustain  these  words  deal 
with  my  client. 

And  here,  gentlemen,  I  have  a  word  to  say  for 
my  colleagues  and  for  myself,  lest  we  should  be 
misunderstood — which  I  will  not  forbear  to  say 
— although  upon  a  topic  not  spoken  of  usually  in 
courts,  for  I  am  invited  to  it  by  the  remarks  of 
the  learned  counsel  for  the  government.  In  Lis 
opening,  he  spoke  most  eloquently  of  the  Union, 
its  history,  the  reciprocal  obligations  of  its  States, 
the  high  and  solemn  duty  imposed  upon  us  all, 
lest  by  any  means  we  should  not  prize  aright  its 
blessings,  or  be  cold  or  lukewarm  in  its  pre- 
servation, or  hesitate  to  cut  off  the  parricidal  hand 
which  strikes  a  blow  against  its  perpetuity. 

Sir,  I  endorse,  warmly,  cordially,  and  from 
my  inmost  heart,  and  so  do  my  colleagues,  and 
so  does  my  client,  all  he  said.  But,  sir,  I  could 
not  help  thinking,  as  he  spoke,  that  we  have 
come  to  that  period  in  our  history  when  the 
value  of  this  Union,  and  the  duty  of  its  preserva- 
tion, and  love  for  the  Union,  are  so  interwoven 
with  our  associations,  our  personal  history,  our 
memories  of  the  past  and  our  hopes  for  the  fu- 
ture, that  the  endurance  of  the  Union  runs  in 
with  the  natural  current  of  the  thoughts  and 


103 


TREASON  CASES. 


feelings  and  expectations  of  every  American  citi- 
zen. It  is  a  part  of  his  being ;  he  is  a  Union 
man  because  he  is  an  American.  We  are  all 
Union  men. 

But  I  have  no  sympathy  with  this  mawkish 
squeamishness,  this  everlasting  fear  lest  every 
exciting  topic  should  disturb  the  Union.  Let  us 
feel  that  the  Union  rests,  as  it  does,  below  all 
currents,  and  deep  in  the  unchanging  affections 
of  all  the  people,  and  then  we  shall  never  fear  the 
open  and  manly  discussion  of  any  question — how- 
ever earnest  the  discussion,  and  however  excit- 
ing the  topic.  I  have  felt  free,  sir,  to  allude  to 
this  subject,  because  I  could  not  but  feel,  as  the 
learned  gentleman  spoke,  that  his  remarks  im- 
plied at  least  that  we,  of  our  side,  were  here, 
perhaps,  to  advocate,  certainly  to  defend,  acts 
hostile  to  the  Union.  May  it  please  the  Court, 
I  am  here,  and  my  colleagues  are  here,  for  no 
such  purpose ;  but  when  we  remember  the 
strange  and  unusual  fact,  that,  in  this  prosecution 
the  State  of  Maryland  is  here,  by  two  gentlemen, 
(for  whom  personally,  we  desire  to  express  the 
truest,  respect,)  implying,  by  their  presence,  dis- 
trust of  the  proper  officers,  the  General  Govern- 
ment, and  distrust  of  the  justice  of  Pennsylvania, 
we  feel,  gentlemen,  and  we  believe  you  will  feel 
as  Pennsylvanians,  that  the  remarks  of  the 
learned  gentlemen  were  not  lightly  spoken,  and 
that  our  friends  of  the  other  side,  designed, 
however  unjustly,  to  impute  to  Pennsylvania  lack 
of  fidelity  to  her  Constitutional  obligations. 

Fidelity  to  her  Constitutional  obligations. 
Sir,  as  a  Pennsylvanian  I  say,  the  charge  of 
the  learned  gentleman  was  unjust.  The  history 
of  her  legislation  upon  this  subject  will  vindi- 
cate her  good  faith.  I  will  not  advert  to  her 
legislation  prior  to  1826,  for  the  learned  gentle- 
man did  not  complain  of  it ;  but  I  commence 
with  the  Act  of  1826.  Sir,  it  was  passed  by  our 
Legislature  at  the  request  of  Maryland.  I  read 
from  the  Journals  of  the  House  of  Representa- 
tives, (Mr.  Cuyler  here  read  a  lengthened  ex- 
tract, showing  that  Mr.  Goldsborough  and  others, 
appeared  as  Commissioners  from  the  State  of 
Maryland,  and  were  invited  to  seats  on  the  floor ; 
also  further  extracts  relative  to  the  bill  and  the 
agency  of  these  gentleman  in  its  passage.)  I 
read  further,  sir,  that  one  intelligent  member  of 
the  House,  Mr.  Hobart,  protested,  and  the 
grounds  of  hig  protest  are  those  adopted  by  the 
Supreme  Court  of  the  United  States,  in  Com.  v. 
Prigg.  (Mr.  Cuyler  here  read  the  protest.)  This 
then  was  the  much  abused  Act  of  1826,  and  it 
was  the  Act  passed  at  the  request  of  Maryland 
herself.  This  was  succeeded  by  the  decision 
in  Com.  v.  Prigg,  reported  in  16  Peters',  pro- 
nouncing the  Act  of  1826  unconstitutional,  null, 
and  void,  and  declaring  that  State  legislation  on 
the  subject  was  needless  and  uncalled  for.  In 
strict  pursuance  of  that  decision,  the  Legislature 
passed  the  much  slandered  Act  of  1847,  and  it 
passed  unanimously.  Strange  that  our  friends 
complain  of  and  denounce  it.  It  bears  the  ap- 
proving signature  of  one  of  my  learned  oppo- 
nents, Mr.  Cooper,  who  was  at  that  time  Speaker 
of  the  House. 

Merely  as  a  part  of  the  history  of  our  action, 


I  refer  in  this  connection  to  the  decision  of  Judge 
Coulter  in  Cauffman  v  Oliver,  10  Barr,  as  fully 
sustaining  our  State  legislation. 

It  will  appear  then  that  Pennsylvania  was  ever 
true  to  her  plighted  Constitutional  good  faith. 
I  will  not  indulge  in  recriminations,  but  I  can- 
not forbear  to  allude  to  the  Statutes  of  Mary- 
land which  consign  to  perpetual  slavery  the  free 
black  citizens  of  a  Northern  State,  who  set  foot 
upon  the  soil,  or  to  the  bill  which  by  the  morning 
papers  I  perceive  South  Carolina  is  discussing, 
forbidding  the  use  of  her  process  or  her  Courts 
to  citizens  of  Northern  States. 

I  beg  your  honors'  pardon  for  this  digression, 
and  I  will  pass  at  once  to  the  merits  of  my  case. 

The  defendant,  Castner  Hanway,  gentlemen  of 
the  jury,  comes  here  and  instructs  me,  as  his 
counsel,  to  say,  in  the  strongest  and  most  une- 
quivocal language,  that  he  is,  and  will  prove  that 
he  is,  an  innocent  man,  most  unjustly  charged 
with  this  high  offence. 

We  will  submit  to  you,  a  jury  of  his  country- 
men, his  evidence,  and  will  then  ask,  not  merely 
a  verdict  of  acquittal,  but  that,  in  the  full  con- 
viction of  his  perfect  innocence,  you  will  restore 
him  to  his  home,  and  to  the  affectionate  em- 
braces of  his  wife,  who,  as  you  have  witnessed, 
has  so  tenderly  and  truly  clung  to  him  as  the 
partner  of  his  sorrows,  with  a  good  name,  as 
unsullied  as  it  was  before  this  first  imputation 
was  cast  upon  it. 

The  defendant,  gentlemen,  is  no  dishonored 
outcast;  he  is  an  honest,  peaceful,  law-abiding 
citizen,  as  free  of  participation  in  this  offence  as 
you  who  sit  in  the  jury-box  ;  or  his  honor,  upon 
the  bench,  who,  with  yourselves,  and,  I  doubt 
not,  with  our  friends  on  the  other  side,  will  re- 
joice, if  I  shall  be  able  to  assure  them,  that  the 
defendant  is  indeed  an  innocent  man. 

This  defendant,  gentlemen,  is  not  here  through 
his  counsel  to  defend  those  sad  deeds  which  dis- 
graced the  sweet  and  peaceful  valley  near  Chris- 
tiana on  the  9th  of  September  last,  or  by  one 
unkind  or  reproachful  word  to  open  again  the 
yet  fresh  wounds  of  any  member  of  that  family 
which  suffered  so  deeply  there.  It  is  no  part  of 
his  defence  to  defend  those  who  took  part  in  that 
conflict.  His  defence  is  simply  that  he  was  in 
no  way  a  party  to  these  outrages ;  but  as  a  pre- 
caution, I  shall  pass  beyond  this  line,  and  added 
to  this,  will  open  to  you,  that  however  grave  and 
serious  may  be  and  is  the  offence  of  those  who 
took  part  in  those  outrages,  yet  it  does  not 
amount  to  the  offence  charged  in  the  indictment. 

The  defendant  is  a  native  of  the  State  of  Dela- 
ware, a  slave  State,  where  many  of  his  kindred 
and  many  of  his  friends  still  reside.  At  five 
years  of  age,  he  removed  with  his  father  to  Ches- 
ter county,  Pennsylvania.  After  living  there  for 
several  j^ears,  he  removed  with  his  father  from 
this  State,  for  a  short  time,  to  Maryland,  and 
then  for  a  number  of  years  to  one  of  the  Western 
States.  About  three  years  ago,  he  returned  to 
Chester  county,  in  this  State ;  and  last  spring, 
having  been  married  a  few  months  before,  he  es- 
tablished himself  in  his  business,  which  is  that  of 
a  miller,  in  Chester  Valley,  Lancaster  county, 
close  to  the  scene  of  this  outrage.    You  will  thus 


UNITED  STATES  V.  HAN  WAY. 


109 


observe  that  he  is  almost  a  stranger,  in  this,  his 
new  place  of  abode  ;  and  yet  there,  as  elsewhere, 
•we  shall  show  you  he  has  sustained  with  all — 
and  I  had  almost  said,  above  all — a  good  name 
in  all  respects  ;  and,  most  of  all,  for  peaceful- 
ness,  quietness,  and  submission  to  the  laws. 

To  understand  this  case,  gentlemen,  it  is  neces- 
sary that  you  should  know  something  of  the 
geography  of  the  country  where  these  events  took 
place.  Parker's  house,  the  scene  of  what  I  call 
the  riot,  is  situated  in  Chester  Valley,  a  sweet 
and  lovely  spot.  The  Valley  is  at  this  point 
about  one  mile  in  width,  and  united  on  either  side 
by  hills,  at  whose  bases  wind  along  the  main 
roads.  These  two  roads  are  connected  by  a 
private  lane  about  one  mile  in  length.  Parker's 
house  is  in  the  valley,  near  to  one  of  its  sides. 
It  is  approached  by  a  short  lane  leading  off  from 
the  long  lane,  and,  about  forty  feet  from  the  en- 
trance of  the  short  into  the  long  lane,  bars  are 
placed  across  the  short  lane. 

This  sweet  valley  was  the  abode  of  peace  and 
contentment,  until  the  events  which  I  am  about 
to  detail,  took  place. 

On  the  borders  of  Lancaster  county  there  re- 
sides a  band  of  miscreants,  who  are  well  known 
to  the  laws,  and  well  known  to  the  records  of  the 
Penitentiary  in  this  State.  They  are  professional 
kidnappers.  Not  kidnappers  in  the  sense  spoken 
of  by  the  learned  Judge  yesterday — but  kidnap- 
pers in  the  legal  sense  of  the  term.  These  men 
by  a  series  of  a  lawless  and  diabolical  outrages, 
have  invaded  the  peace  of  this  valley—begetting 
dread  in  every  household,  and  a  general  sense  of 
insecurity  in  every  home. 

It  will  be  in  evidence  that  in  the  month  of 
September,  1850,  these  men  entered  the  .house 
of  Henry  Williams,  and  at  his  very  fire  side, 
seized  and  carried  into  perpetual  slavery,  with- 
out right  and  without  process  of  law  of  any  kind, 
an  innocent  hired  man  in  his  employ.  Shortly 
afterward,  in  the  month  of  March  last,  these 
lawless  scoundrels  entered  as  a  band  of  armed 
ruffians,  the  house  of  Mr.  Chamberlain,  and  after 
posting  sentinels  about  the  house,  in  the  very 
presence  of  the  members  of  the  terrified  family, 
beat  to  the  earth  one  of  his  servants,  and  carried 
him  away.  The  family  traced  them  by  the  fresh 
blood  of  their  victim,  to  a  point  on  the  edge  of 
the  woods,  where  the  fresh  traces  of  wagon 
wheels  showed  the  course  they  had  taken. 

Neither  of  these  men  were  ever  returned.  I 
might  detail  other  and  kindred  outrages,  but  it 
will  be  enough  for  me  to  say,  that  the  effect  has 
been  to  produce  every  where  through  this,  till 
then  peaceful  valley,  a  general  and  deep  sense 
of  insecurity.  In  consequence  of  these  occur- 
rences, the  blacks  exercising  but  a  fair  and  natu- 
ral right,  armed  themselves,  and  to  some  extent 
organised  purely  for  their  own  protection.  Yet 
there  were  good  men  and  true  in  this  valley, 
who  nobly  exerted  themselves  to  soothe  the 
justly  excited  feeling  of  the  people,  and  among 
them  most  prominent,  was  Elijah  Lewis.  To-day 
this  man  is  an  inmate  of  a  prison — charged  with 
high  treason — to  be  tried  for  his  life — and  yet  he 
is  an  innocent  man,  as  free  of  guilt  as  you  who 
git  in  the  jury-box,  or  his  honor  upon  the  bench. 


I  come  now,  gentlemen,  to  the  occurrences  of 
the  11th  of  September  last.  On  the  morning  of 
that  day,  about  sunrise,  it  will  be  in  proof  to  you, 
Elijah  Lewis  was  informed  by  a  witness  who  will  be 
placed  on  the  stand,  there  were  "  kidnappers  at 
Parker's  house  "  And  starting  at  once,  as  you  or 
I  would  have  done,  upon  the  receipt  of  such  a 
notice — he,  as  he  passed,  gave  the  information 
to  Castner  Hanway.  Hanway  mounted  his  horse 
and  rode  over,  and  at  the  bars  met  Lewis,  who 
had  taken  a  nearer  route  across  the  fields.  As 
they  arrived  Kline  met  them,  and  stating  that  he 
was  marshal,  required  their  aid.  Lewis  asked 
to  see  his  authority  and  Kline  produced  the 
writs.  Meanwhile  the  blacks  were  gathering 
fast,  and  Hanway,  pointing  out  the  fact,  warned 
the  marshal  of  the  danger  of  attempting,  under 
such  circumstances,  an  arrest,  and  advised  him 
to  retire.  At  the  same  time,  and  before  any 
firing,  the}'  retired.  And  passing  out  of  the 
short  lane,  Lewis  followed  by  Kline,  turned  up 
toward  the  woods,  while  Hanway  rode  down  the 
long  lane  toward  the  Creek.  Before  the  firing 
began,  Kline  had  reached  the  woods,  and  was, 
therefore,  as  it  will  be  proven,  away  from  the 
spot  and  from  the  scenes  he  so  graphically  de- 
scribed in  his  testimony,  at  the  time  the  firing 
took  place.  Yes,  gentlemen,  we  shall  prove  to 
you  he  was  away — that  he  never  knew  and  never 
saw  the  events  he  pretended  to  detail  as  an  eye- 
witness, and  that  even  the  little  of  truth,  which 
his  lips  unused  to  utter  truth,  polluted — was  told 
in  an  untrue  and  garbled  form.  To  continue  the 
sketch  of  Hanway's  course,  we  shall  show  you  by 
proof  beyond  all  doubt — that,  perceiving  as  he 
rode  away,  the  blacks  pursuing  Dr.  Pierce,  he 
halted,  and  permitting  him  to  hold  by  the  stirrup 
rode  on,  interposing  his  own  body  to  shield 
the  life  of  Pierce,  from  the  bullets  of  the  pur- 
suing blacks.  Yes,  gentlemen,  these  are  the 
facts — not  lightly  or  inconsiderately  told — but 
such  as  can  and  will  be  proven.  This  maligned 
and  much  abused  man,  between  whom  and  the 
United  States,  you  are  sworn  to  pass  upon  his 
life  and  death,  interposed  his  own  life  to  save 
the  life  of  one  of  those — whose  blood  this  indict- 
ment alleges  that  he  sought,  and  from  the  lips  of 
Dr.  Pierce,  we  will  prove,  that  he  owes  it  to 
Hanway  that  he  is  this  day  a  living,  breathing 
man. 

Having  proven  these  facts,  we  shall  show  you 
by  ample  proof,  the  notorious  bad  name  of  Kline 
for  truth,  and  the  high  good  name  ever  sustained 
by  the  defendant,  for  every  good  quality  which 
can  do  honor  to  the  character  of  a  citizen. 

Treason  shall  consist  only  in  levying  war 
against  the  United  States.  Do  the  facts  of  the 
case  sustain  the  charge  ? 

Sir — Did  you  hear  it  ?  That  three  harmless, 
non-resisting  Quakers,  and  eight-and- thirty 
wretched,  miserable,  penniless  negroes,  armed 
with  corn-cutters,  clubs,  and  a  few  muskets,  and 
headed  by  a  miller,  in  a  felt  hat,  without  a  coat, 
without  arms,  and  mounted  on  a  sorrel  nag, 
levied  war  against  the  United  States. 

Blessed  be  God  that  our  Union  has  survived 
the  shock. 

Sir — It  is  for  a  charge  of  high  treason,  based 


110 


TREASON  CASES. 


upon  such  levying  of  war  as  this,  that  we  are 
here  to-day.  It  was  for  this,  that  the  State  of 
Maryland  forsook  her  high  position,  and  entered 
this  Court  as  a  private  prosecutor  ;  thirsting  for 
blood;  the  blood  of  this  obscure  and  humble 
man.  It  was  for  this,  that  a  grave  Senator  for- 
sook his  accustomed  paths,  and  is  here  to-day, 
asking  for  blood  ;  the  blood  of  one  of  his  con- 
stituents. It  was  for  this,  the  Recorder  of  the 
City  of  Philadelphia,  self-persuaded  that  high 
talent  and  great  moral  weight,  were  needed  to 
sustain  such  a  persecution  ;  I  beg  pardon  ;  prose- 
cution ;  volunteered  his  services.  But  sir,  the 
subject  is  too  grave  for  irony,  strange  though  it 
may  be,  and  absurd  though  it  seems  to  me  ;  yet 
to  this  man  it  may  be  death.  But  I  could 
not  forbear  to  say,  that  a  charge  founded  upon  a 
proposition  so  absusd,  that  to  state  it,  was  to 
refute  it ;  could  not  but  shock  the  common  sense 
of  all  the  people.  Aye !  your  common  sense, 
gentlemen  of  the  jury.  Be  guided  by  your  com- 
mon sense.  You  were  not  asked  to  lay  that  aside 
when  yon  entered  the  jury-box,  or  to  substitute 
for  it  fancies,  theories,  or  the  speculations  of  in- 
genious counsel. 

Indeed,  had  I  the  time  to  trace  down  in  the 
State  trials,  the  decisions  upon  these  words,  I 
could  easily  show  that  from  time  to  time,  they 
have  received  by  English  ruling,  a  narrower  and 
still  more  narrow  meaning ;  but  I  venture  boldly 
to  affirm,  that  in  no  period  of  English  law  for 
the  last  two  hundred  years,  have  events  such  as 
have  been  detailed  here  in  evidence  been  held  to 
be  high  treason,  except  when  the  law  was  pro- 
nounced through  the  polluted  lips  of  a  Scroggs 
or  a  Jeffries.  May  it  please  your  Honors,  I  can 
find  somewhere  in  the  English  State  trials,  pre- 
cedents ;  alas,  too  many  precedents  ;  to  prove 
that  there  is  no  principle  of  constitutional  liberty 
which  we  hold  sacred,  that  is  not  baptised  with 
the  martyr  blood  of  some  one  whom  we  revere 
for  his  noble  patriotism,  and  yet  who  perished 
on  tli3  scaffold  ;  convicted  of  high  treason  for  his 
defence  of  that  high  principle.  But  if  I  am  to 
come  to  more  recent  times,  I  say  both  British 
and  American  law,  will  show  that  a  charge  of 
high  treason  cannot  be  sustained  upon  these 
grounds,  and  that  nowhere  have  these  words, 
"levying  war,"  received  a  construction  which 
will  sustain  the  indictment. 

I  return,  sir,  nearer  to  the  point  of  my  case. 
Treason  against  the  United  States,  we  are  told 
in  the  Constitution,  shall  consist  only  in  levying 
war  against  the  United  States,  and  giving  aid 
and  comfort  to  their  enemies. 

To  me,  this  language  seems  to  be  what  it  ought 
to  be ;  plain  and  unequivocal.  Left  to  its  na- 
tural meaning,  it  addresses  itself  as  it  ought  to 
do,  to  the  easy  comprehension  of  every  man.  It 
is  part  of  our  Constitution.  An  instrument  which 
is  designed  to  govern  all  the  people,  should  re- 
ceive no  strange,  fanciful,  or  unnatural  construc- 
tion, contrary  to  the  simple  comprehension  of  the 
great  mass  of  those  who  are  governed  by  it. 

It  will  scarcely  be  contended  that  the  natural 
meaning  of  these  words  will  sustain  this  indict- 
ment. 

To  escape  the  difficulty,  we  are  told  they  are 


words  borrowed  from  the  English  Statute,  25, 
Edward  III. ;  and  have  affixed  to  them  in  Eng- 
lish law,  by  a  long  series  of  time-honored  deci- 
sions, a  certain  fixed  and  well-known  legal 
meaning. 

I  shall  have  occasion,  sir,  presently,  to  call 
your  attention  to  several  of  the  most  recent 
English  rulings  upon  the  meaning  of  these  words 
— and  these  will  scarcely  be  found  to  sustain 
earlier  rulings  in  English  Courts. 

Mr.  Cuyler  here  cited  a  number  of  authorities, 
as  follows  : 

21  Howell's  State  Trials,  p.  644. 

"  Loan  Mansfield,  Gentlemen  of  the  Jury;  the 
prisoner  at  the  bar  is  indicted  for  that  species  of 
high  treason,  which  is  called  levying  war  against 
the  King ;  and  therefore,  it  is  necessary  you 
should  first  be  informed,  what  is  in  law  levying 
war  against  the  King,  so  as  to  constitute  the 
crime  of  high  treason.  Within  the  statute  of 
Edward  III.,  and  perhaps  according  to  the  legal 
signification  of  the  term  before  that  statute,  there 
are  two  kinds  of  levying  war :  one  against  the 
persons  of  the  King  :  to  imprison,  to  dethrone, 
or  to  kill  him;  or  to  make  him  charge  measures; 
or  remove  counsellers  ;  the  other,  which  is  said 
to  be  levied  against  the  Majesty  of  the  King,  or, 
in  other  words,  against  him  in  his  royal  capacity; 
as  when  a  multitude  rise,  and  assemble  to  attain 
by  force  and  violence,  any  object  of  a  general 
public  public  nature  ;  that  is  levying  war  against 
the  majesty  of  the  King,  and  most  reasonably  so 
held,  because  it  tends  to  dissolve  all  the  bonds  of 
society,  to  destroy  property,  and  to  overturn 
government :  and  by  force  of  arms,  to  restrain 
the  King  from  reigning  according  to  law.  In- 
surrections by  force  and  violence,  to  raise  the 
price  of  wages,  to  open  all  prisons,  to  destroy 
meeting-houses  ;  nay,  to  destro}'  all  brothels,  to 
resist  the  execution  of  militia  laws,  to  throw 
down  all  inclosures,  to  alter  the  established  law, 
or  change  religion,  to  redress  grievances,  real  or 
pretended,  have  all  been  held  levying  Avar.  Many 
other  instances  might  be  put.  Lord  Chief  Jus- 
tice Holt,  in  Sir  John  Friend's  case,  says:  "if 
persons  do  assemble  themselves,  and  act  with 
force  in  opposition  to  some  law,  which  they  think 
inconvenient,  and  hope  thereby  to  get  it  repealed, 
this  is  levying  war  and  is  treason."  In  the  pre- 
sent case,  it  don't  rest  upon  an  implication,  that 
they  hoped  by  opposition  to  a  law,  to  get  it  re- 
pealed ;  but  the  prosecution  proceeded  upon  the 
direct  ground,  that  the  object  was,  by  force  and 
violence  to  compel  the  Legislature  to  repeal  a 
law  ;  and  therefore,  without  any  doubt,  I  tell 
you  the  joint  opinion  of  us  all ;  that  if  this  mul- 
titude assembled  with  intent,  by  acts  of  force 
and  violence,  to  compel  the  Legislature  to  repeal 
a  law,  it  is  high  treason." 
32  Howell,  page  928-9. 

"  The  act  of  parliament  in  which  are  the  words 
levying  war  which  are  now  to  be  construed,  is  of 
the  Statute  25th  Edward  III.  The  act  runs  thus, 
"  when  a  man  doth  compass  or  imagine  the  death 
of  our  lord  the  king,"  and  so  on  enumerating 
some  other  things  which  are  not  now  the  subject 
of  consideration  "  or  if  a  man  do  levy  Avar  against 
the  lord  our  king  in  his  realm"  he  is  guilty  of 


UNITED  STATES  V.  HANWAY. 


Ill 


high  treason,  the  words  are  "if  a  man  do  levy  j 
war  against  the  king  in  his  realm. :'    Then  the  i 
question  is,  what  is  levying  war  against  the  king 
in  his  realm  ?  Now  I  will  read  you  an  exposition  of 
this  law.  in  words  which  are  very  short  and  very 
clear,  and  being  short  and  clear,  I  rather  prefer  \ 
to  adopt  them  instead  of  my  own,  which  perhaps 
might  not  he  so  clear.    "If  there  is  any  insur- 
rection, that  is  a  large  rising  of  the  people,  in 
order  by  force  and  violence  to  accomplish  or 
avenge,  not  any  private  quarrel  of  their  own,  but 
to  effectuate  any  general  public  purpose,  that  is 
considered  by  the  law  as  levying  war.5'  There 
must  be  an  insurrection,  force  must  accompany  j 
that  insurrection,  it  must  be  for  an  object  of  a 
general  nature,  but  if  all  these  circumstances 
concur,  that  is  quite  sufficient  to  constitute  the 
offence  of  levying  war. 

It  must  be  "a  public  object,  therefore  tumults 
which  have  a  private  object  and  in  which  the 
parties  have  in  view  merely  private  individual 
interests  are  distinguished  by  the  statute  itself  j 
from  attacks  on  the  regal  authority  of  the  realm. 
If  therefore,  it  should  appear,  as  indeed  has 
been  contended,  that  the  insurrection  or  tumult  i 
under  consideration  was  only  the  effect  of  a  pre- 
vailing spirit  of  tumult,  violence,  or  disorder  J 
directed  to  any  private  object,  or  anything  but  ' 
an  attack  aimed  at  the  royal  authority  of  the  J 
realm,  that  would  not  be  high  treason.    And  no  | 
person  who  administers  the  law,  will  ever  I  trust, 
attempt  to  confound  tumults  of  the  sort  I  have 
mentioned  with  treason,  which  is  an  attempt  to  j 
overturn   the    established   government  of  the 
country,  as  for  instance,  in  order  to  put  a  plain 
case,  and  in  putting  which  I  am  using  the  words 
of  a  very  great  judge;— "if  a  body  of  men 
assemble  together,  and  with  force  destroy  a  par- 
ticular inclosure,  for  instance,  that  is  not  an 
attack  of  a  general  nature  ;  it  is  a  high  misde- 
meanor, but  not  treason  ;  but  if  they  assemble 
with  force  to  put  an  end  to  all  inclosures,  that  is 
of  a  general  and  public  nature  and  it  constitutes 
treason ;"  if  there  should  unfortunately  be  an 
assemblage  of  men  with  force  to  destroy  a  chapel  i 
or  other  obnoxious  building,  that  being  confined 
to  a  particular  object,  would  not  be  treason :  but 
if  the  same  power  was  applied  to  destroy  all  j 
chapels  or  all  offensive  buildings,  that  has  been 
held  clearly  to  be  high  treason." 

[He  referred  also  to  "Wharton's  State  Trials,  1 
and  read  from  the  rulings  in  Fries  Case,  Burrs  j 
Case,  &c.  Wharton's  State  Trials,  p.  481,  581,  \ 
539,  590,  634.] 

Mr.  Coyler  further  cited  from  Howell's  State 
Trials,  xxiii.  921,  Thistlewood's  Case,  as  follows:  j 

"  This  is  the  general  nature  of  the  project  im- 
puted to  the  prisoner  at  the  bar  ;  it  is  important  ! 
for  you  to  consider  whether  that  project  is  to 
your  satisfaction  proved.    The  question  is,  not 
whether  it  was  intended  by  these  persons,  and 
whether  steps  were  taken  to  carry  it  into  effect. 
The  improbabi  ity  of  the  success  of  such  a  scheme  : 
is  fit  matter  for  your  consideration,  in  weighing 
the  evidence  that  is  laid  before  you,  in  order  to 
prove  that  the  scheme  exist,  or  did  it  not :  and 
is  it  proved  to  your  satisfaction  by  the  evidence  j 
that  _  ~\.  *  been  laid  before  you."  i 


Y."e  also  read  lastly,  from  the  report  of  the 
United  States  v.  Hoxie,  1  Paine,  265. 

This,  Gentlemen  of  the  Jury,  is  the  case  I  open 
to  you.  Its  appeal  is  to  your  common  sense, 
and  your  reason,  as  well  as  to  your  conscience 
and  your  oaths  as  jurors. 

In  this  appeal  I  shall  not  be  mistaken.  Say 
by  your  verdict,  that  this  man  is  innocent,  and 
restore  him  to  his  home  and  his  family,  from 
which  he  should  never  have  been  separated :  and 
my  word  for  it.  the  memory  of  your  verdict  will 
be  to  you,  always  a  sweet  and  cherished  recol- 
lection. 

May  it  please  the  Court,  I  will  proceed  to  call 
witnesses  f<  r  the  defence. 

Thomas  Penington,  affirms. 

Mb.  Stevens.  Will  you  be  so  good  as  to  state 
to  this  Court  or  Jury,  any  fact  which  you  know 
with  regard  to  the  kidnapping  and  carrying  away 
of  coloured  persons  in  the  neighbourhood  of  the 
Gap  within  the  last  year  ? 

Mb,.  Cooper.    Objected  to. 

Judge  Kane.    Before  the  alleged  overt  act? 

Mr.  Stevens.  Yes.  sir.  before  the  time  spoken 
of,  the  11th  of  September  last,  within  nine  months 
of  the  present  time. 

Mr.  Ashmead.  We  object  to  the  introduction  of 
this  testimony,  because  in  the  first  placet  it  is  irre- 
levant to  the  issue,  and  if  it  were  introduced  it 
would  have  a  pernicious  instead  of  a  beneficial 
effect  upon  the  execution  of  all  law.  Y,"e  have 
charged  that  the  defendant  sought  to  resist  the 
laws  of  the  United  States,  and  so  far  as  the  testi- 
mony is  before  this  Court,  that  process  was  in  the 
hands  of  an  officer  and  exhibited  to  the  party  on 
trial,  and  after  perusing  the  instrument,  certain 
acts  took  place  which  were  countenanced  and 
encouraged  by  him.  They  propose  to  show  that 
nine  months  anterior  to  the  11th  of  September, 
there  were  parties  who  actually  kidnapped,  and 
can  it  be  given  in  evidence  that  certain  parties 
did  nine  months  before  commit  an  unlawful  act. 
There  is  no  crime  in  the  world  that  could  not  be  jus- 
tified in  the  same  way,  and  by  showing  that  some- 
body had  done  a  wrong  anterior  to  it.  I  say  that 
if  you  admit  evidence  that  an  outrage  was  com- 
mitted nine  months  before,  under  circumstance 
not  justifiable  at  all,  an  outrage  which  was  aa 
outrage  against  all  law ;  I  say,  to  undertake  to 
try  a  cause  in  that  way  would  be  to  give  an  im- 
punity to  these  offences. 

Judge  Grier.  This  would  be  unanswerable  if 
you  had  indicted  this  man  simply  for  resisting  an 
officer  of  government :  but  when  you  have  accused 
him  of  treason,  it  is  a  position  founded  upon  some 
previous  conspiracy  or  agreement.  If  persons 
came  merely  upon  the  spur  of  the  moment,  or  whe- 
ther in  open  war,  and  by  some  previous  agreement 
had  been  called  together,  or  whether  it  was  in  open 
resistance  to  the  laws  of  the  United  States  ;  but  it 
must  be  shown.  Y>"e  have  given  you  the  widest 
scope  to  prove  either  by  proclamation  or  meeting, 
or  a  mere  publication  that  it  was  a  levying  of  war 
against  the  United  States,  or  whether  it  was  not, 
and  therefore  what  is  fair  on  one  side  I  cannot 
see  but  that  it  is  fair  on  the  other. 

Mr.  Ashmead.  Your  Honors  permitted  us  un- 
doubtedly to  show  that  there  were  meetings,  and 


112 


TREASON  CASES. 


•what  was  done  upon  those  meetings,  with 
these  limitations,  that  we  should  connect  this 
defendant  with  them,  or  some  parties  on  trial 
here. 

Judge  Grier.  If  you  have  proved  his  presence 
as  an  overt  act,  a  participation,  a  guilty  partici- 
pation in  it  with  a  large  number  of  other  persons, 
and  connect  him  as  accessory  to  the  conspiracy 
at  any  time  ;  then  he  becomes  liable  for  the  acts 
of  all  other  persons  concerned. 

Mr.  Ashmead.  We  charged  here,  that  this 
combination  occurred  the  11th  of  September. 
We  have  shown  that  warrants  were  issued  on  the 
9th.  We  have  proved  that  they  went  up  there 
to  oppose  the  laws  of  the  United  States  ;  and 
can  this  defence  go  back  nine  months  ?  If  they 
can  go  back  nine  months,  they  can  go  back 
eighteen  months.  If  they  can  show  something 
within  even  two  weeks,  it  will  be  admitted  by  us; 
but,  to  permit  them  to  show  that  some  other! 
parties,  not  purporting  to  have  any  connection 
with  this  affair  at  all,  committed  a  certain  out- 
rage nine  months  anterior  to  the  time  this  trans- 
action took  place,  I  say  it  is  opening  too  wide  a 
door  for  the  counsel  on  their  side. 

Judge  Grier.  Is  it  not  an  important  fact, 
that  a  horn  was  blown,  and  that  these  people 
were  prepared  to  run  together  with  clubs, 
scythes,  corn-cutters,  &c,  as  evidence  of  a 
preconcert  or  conspiracy  to  oppose  the  officers 
of  the  law. 

Mr.  Ashmead.  I  think  it  would  be,  but  it 
must  be  about  that  time  ;  and  I  suppose  from 
the  nature  of  the  case,  that  it  must  be  confined 
to  about  the  time  these  occurrences  took  place. 

Judge  Kane.  The  difficulty  upon  my  mind  is 
somewhat  different,  yet,  perhaps,  included  in 
the  same  general  category  of  remark.  Take  the 
analogous  case  of  a  person  accused  of  murder, 
and  upon  the  question  of  malicious  intent,  it  be- 
ing in  proof  that  he  went  to  the  place  where  the  al- 
leged murder  was  committed,  bearing  deadly  wea- 
pons, it  would  certainly  be  permitted  him  to  show 
that  there  was  a  general  sentiment  of  personal 
insecurity  in  the  community,  which  justified  him 
in  carrying  arms,  and  thence  infer  the  reason  why 
he  had  arms.  But  my  doubt  is,  whether  you  can 
be  permitted,  in  the  first  instance,  to  examine  as 
to  the  specific  circumstances  upon  which  that 
general  sentiment  was  founded.  Without  having 
heard  the  learned  counsel,  it  seems  to  me  a  legi- 
timate question  might  be,  was  there  a  sentiment 
pervading  that  community  of  such  a  character  as 
to  furnish  an  innocent  explanation  of  the  blow- 
ing of  horns,  and  the  gathering  that  followed.  If 
we  were,  instead,  to  inquire  into  the  particular 
grounds  of  the  public  sentiment,  the  field  might 
be  so  enlarged  as  to  lead  us  into  collateral 
issues. 

Judge  Grier.  The  remarks  made  are  only  to 
call  the  counsel's  attention  to  the  views  that 
present  themselves  to  the  minds  of  the  Court  at 
the  moment. 

Mr.  Stevens.  If  the  Court  please,  your  honors 
need  not  be  informed  that  the  crime  of  treason 
ronsists  in  acts  done,  and  the  intention  with 
jvhich  they  were  done.  Many  acts  may  be  done 
ffhich  if  done  with  an  intention  to  levy  war 


against  the  United  States,  would  be  treason; 
but  these  same  acts  done  without  any  such  pre- 
vious intention,  would  amount  to  an  ordinary 
breach  of  the  peace,  or  to  misdemeanor  and  mur- 
der.   The  great  question  to  be  considered  by 
this  court,  and  especially  by  the  jury  is,  what 
brought  together  these  people,  some  armed  and 
some  unarmed.    For  if  they  have  come  together 
with  a  lawful  intent,  and  afterwards,  even  they 
who  came  with  such  intent,  committed  murder, 
it  is  not  treason.    How  then  are  you  to  show 
what  brought  these  people  together.    The  prose- 
cution have  given  some  slight  testimony,  such 
as  the  sounding  of  a  horn  about  breakfast  time, 
from  which  I  suppose  they  will  ask  a  jury  to  in- 
fer that  there  was  a  previous  combination  to 
resist  the  United   States   government.  Now, 
what  we  propose  to  show  is  this  :  That  there 
were  in  that  immediate  neighborhood  a  gang  of 
professional  kidnappers,  residing  there,  some  of 
whom  had  been  confined  in  the  penitentiary,  and 
had  come  out.  That  they  had  not  only  upon  one, 
but  on  two  or  three  occasions,  in  the  dead  of 
night,  invaded  the  houses  of  the  neighbors,  ot 
white  people,  where  black  men  lived,  and  black 
people,  and  by  force  and  violence  and  great  in- 
jury and  malice,  without  authority  from  any  per- 
son on  earth,  seized  and  transported  these  men 
away,  and  they  have  never  afterwards  been  seen 
or  known  of  in  those  parts.    And  that  in  conse- 
quence of  this,  there  was  a  general  feeling  of  in- 
dignation against  these  professional  dealers  in 
human  flesh,  not  against  lawful  authority,  but 
against  professional  outlaws  that  thus  prowled 
over  and  disturbed  this   neighborhood.  And 
that  when  the  prisoner  in  the  morning  (for  the 
first  time)  came  out  of  his  own  house,  not  having 
heard  anything  of  this,  he  was  informed  that 
there  were  kidnappers  trying  to  kidnap  Parker, 
whom  it  was  supposed  was  the  object  of  the  at- 
tack.   And  that  in  pursuance  of  such  informa- 
tion, and  with  a  full  knowledge  of  the  repeated 
acts  of  outrage  and  kidnapping  in  that  neighbor- 
hood, he  went  to  the  place  where  he  did  go.  We 
do  this  to  show  what  might  have  brought  him 
there,  which  is  one  essential  part  of  our  and 
their  case.    And  we  do  it  to  show,  may  it  please 
your  Honors,  that  if  anybody  should  suspect  in 
that  reighborhood  that  there  was  a  covert  term 
or  a  slang  phrase  used,  and  that  kidnappers  did 
not  mean  kidnappers,  to  show  that  it  did  mean 
those  who  followed  that  business  for  a  living. 

We  do  not  care,  if  your  Honors  please,  (and  I 
suppose  the  prosecution  may  have  their  choice,) 
whether  they  confine  us  to  a  single  case,  or  ask 
to  go  on  to  more.  We  do  not  want  to  employ  a 
number,  but  we  want  to  show  that  they  are  not 
idle  rumors  merely,  and  without  foundation,  got 
up  in  a  certain  way  by  anybody,  but  that  they 
are  rumors  that  proceed  from  honest  people. 
My  friends  on  the  other  side  seem  to  think  these 
things  are  mere  pretence.  It  is  well  founded 
that  these  kidnappers  were  caught  in  the  very 
act  of  dragging  a  man  off  in  chains,  never  to  be 
brought  back.  It  is  to  show  the  reason  why  a 
whole  neighborhood  might  be  ready  upon  a  no- 
tice given  (upon  the  repetition  of  such  a  crime 
as  that)  to  go  to  a  place,  and  whether  after  get 


UNITED  STATES  V.  HANWAY. 


113 


ting  there  they  committed  anything  that  is  to  be 
considered  an  outrage  of  the  law,  we  shall  be 
prepared  to  show  by  other  testimony.  We  want 
to  show  that  he  went  there  with  pure  and  laud- 
able motives,  and  we  will  undertake  to  show  that 
what  he  did  afterward  he  was  there,  was  honor- 
able, humane,  and  noble. 

Mb.  Read.  Your  Honor's  will  allow  me  to  add 
a  few  words  to  what  my  colleague  has  so  forcibly 
stated,  particularly  upon  the  question  of  time. 
The  Fugitive  Slave  Law  was  passed  in  September, 
1850.  The  excitement  whatever  it  may  have 
been  has  of  course  occured  since  that  period. 
That  is,  the  excitement  supposed  to  have  existed 
upon  one  side  of  the  question,  and  to  which  the 
attention  of  the  United  States, I  think  so  unsuc- 
cessfully,!^ been  directed.  Our  object  now  is  to 
show  that  with  a  law  which  your  Honors  must  say, 
however  constitutional,  was  not  a  popular  law  ; 
one  which  has  excited  feeling  in  the  Northern 
States  and  in  the  minds  of  the  largest  portion  of 
the  community,  and  who  however  not  taking  part 
with  the  Abolition  feeling  as  so  considered  in  the 
southern  states — yet  there  are  many  conscientious 
minds  who  do  not  believe  that  it  was  within  the 
constitutional  power  of  the  Legislature.  It  was 
declared  in  the  halls  of  Congress  by  some  of  the 
most  eminent  men  living  in  the  Southern  States, 
that  they  did  not  consider  it  wise  or  expedient. 
Under  these  state  of  circumstances  whether  it  be 
competent  to  show  there  was  a  sort  of  consterna- 
tion in  Sadbury  township,  if  it  does  not  extend  be- 
yond it,  and  where  the  other  side  have  tried  to 
show  it  existed — namely  a  combination  to  resist 
this  law  of  1850. 

We  propose  (within  a  period  of  time  of  about  a 
year.)  prior  to  this  accident,  excitement,  or  riot,  or 
whatever  term  you  choose  to  apply  to  it ;  we  pro- 
pose to  show  a  distinct  state  of  facts,  occurring  in 
the  same  neighborhood  in  this  valley,  to  account 
for  this  feeling  of  insecurity  on  the  part  of  the 
white  and  colored  men.  And  it  is  for  the  purpose 
more  particularly  of  ascertaining  why  the  pri- 
soner is  upon  this  trial.  He  had  a  legal  right 
to  go  and  see  this  difficulty.  He  had  a  right  to 
go  to  see  that  the  parties  were  armed  with  the 
proper  process  of  laws.  And  we  shall  contend 
that  having  gone  with  this  rightful  purpose,  ana 
for  the  purpose  of  showing  that  he  subsequently 
left  the  ground  in  consequence  of  ascertaining 
that  they  had  legal  process,  and  that  there  was 
no  right .  to  interfere  with  them  in  any  way. 
How  shall  we  do  this  ?  These  matters  that  occur 
iu  a  country  village  months  before,  do  not  pass 
lightly  over  the  minds  of  the  people.  They  do  not 
escape  the  recollection  of  the  inhabitants  of  a 
solitary  valley.  It  is  like  an  event  of  yesterday  in 
the  city  of  Philadelphia.  That  which  is  passed 
over  and  forgotten  in  Philadelphia,  remains  there 
as  a  story  for  years,  until  effaced  by  other  subjects 
and  eveuts.  There  is  a  portion  of  Massachusetts 
lying  near  a  place  called  Halifax,  where  the  only 
events  they  converse  about  are  the  events  of  the 
Revolution.  I  do  not  say  that  this  is  the  con- 
dition of  Sadsbury,  but  it  shows  that  in  small 
towns  or  villages  such  events,  and  the  impression 
they  have  made,  do  not  fade  away.  Our  object 
is  to  show  that  the  individual  who  gave  this 


I  notification  to  Castner  Hanway,  also  believed 
that  these  people  were  without  legal  process, 
I  and  that  they  went  to  attack  Parker,  and  not 
these  individuals.  We  propose  to  follow  these 
things  up  by  a  foundation,  which  is  for  the  jury 
undoubtedly  after  all,  on  the  question  of  inten- 
tion, to  say  whether  he  went  there  with  a  per- 
fectly legal  and  upright  intention,  and  of  course 
\  that  there  was  no  treasonable  conspiracy  before 
had.  Suppose  the  United  States  had  shown 
meeting  after  meeting.  What  did  they  ask  yes- 
terday ?  They  asked  for  the  resolutions  of  a 
meeting  in  Chester  County.  Suppose  they  had 
asked  for  the  resolutions  of  a  meeting  held  in 
Sadbury  township,  and  we  had  produced  them, 
are  we  hot  allowed  to  show  an  act  of  violence 
creating  this  feeling  of  insecurity. 

Persons  had  come  there  without  a  process  of 
\  law,  and  without  the  masters.    They  were  men 
of  notoriously  bad  character,  and  these  persons 
had  taken  a  man  out  of  tne  house  of  the  son- 
in-law  of  the  gentleman  now  in  the  stand ;  and 
had  alarmed  the  wife  and  its  inmates.  They  went 
!  into  the  house  with  pistols,  and  created  an  outrage, 
which  of  course  was  spread  through  the  whole 
country.  What  is  the  best  means  ?  It  is  to  prove 
the  identical  effect  of  such  an  outrage.  Can  there 
i  be  any  doubt  of  it  T  Why  then  should  we  not  go 
■  to.  the  fact  ?    Why  then  should  we  not  give  evi- 
dence of  a  particular  fact,  that  the  Court  and 
and  the  jury  may  judge  of  the  consequences  of 
that  fact.     And  how  important  it  is  that  we 
should  connect  with  the  foundation  of  the  rumors 
in  this  country.    There  are  two.    One  perhaps 
|  will  suffice.    The  latest  one,  which  will  make 
j  the  strongest  impression.    It  was  committed  in 
i  the  house  of  one  who  was  a  respectable  farmer, 
|  a  white  man,  respectably  connected,  and  whose 
'  father-in-law  lives   in  Baltimore  at  this  day, 
I  and  who  is  come  here  for  the  purpose  of  attend- 
!  ing  this  trial.    We  want  to  show  it  was  no  idle 
j  rumor.    I  am  speaking  of  the  fact  with  regard 
to  Hanway,  the  white  man  who  in  this  peculiar 
j  case  is  tried  for  treason.  The  question  is,  whether 
j  he  was  or  was  not  concerned.     Suppose  we 
j  prove  conclusively  that  such  a  party  as  were  the 
first  party  that  came  up,  who,  I  am  sorry  to 
say,  went  under  the  cover  of  night,  with  a  dis- 
guised guide,  and  under  circumstances  far  more 
natural  to  suppose  appeared  like  treason,  and 
which  has  been  followed' by  circumstances  which 
|  we  all  so  much  deplore.    If  we  follow  it  up  by 
showing  that  the  sole  object  of  the  prisoner  at 
the  bar  was  to  go  over,  and  if  these  persons 
could  show  no  authority,  to  interfere,  and  if  they 
had  an  authority  not  to  interfere,  I  say  it  is  im- 
portant to  us,  and  we  are  desirous  of  having  the 
'  facts  as  they  occurred. 

Mr.  Ashmead.  Upon  one  point  I  have  found 
that  I  am  incorrect,  and  that  the  law  is  ruled 
against  us ;  and  the  law  is  that  the  day  is  not 
material,  but  the  question  of  relevancy,  may  it 
please  the  Court,  still  exists. 

Mr.  Cooper.    I  think  the  authority  produced 
by  my  colleague  here  does  not  affect  the  question 
[  as  to  time,  nor  has  it  reference  to  the  evidence 
which  is  proposed  to  be  given  here  on  the  part 
of  the  defence.    The  question,  as  I  understand 


114 


TREASON  CASES. 


it,  is  -whether  the  day  laid  in  the  indictment  is 
material  or  not.  And  on  deciding  that  point, 
Lord  Holt  said  that  acts  tending  to  prove  a 
conspiracy  at  any  time  might  be  given  in  evi- 
dence. 

We  do  not  pretend  to  deny  that.  I  suppose 
that  is  perfectly  settled.  There  is  no  doubt  that 
the  law  is  so,  that  if  the  conspiracy  commenced 
years  ago,  if  the  party  on  his  trial  here  had  con- 
nected himself  for  instance  with  a  society,  years 
ago,  to  violate  any  particular  law,  and  if  it  be 
connected  with  the  transaction  charged  against 
him  in  the  indictment,  it  may  be  given  in  order 
to  show  the  intention.  But  that  is  a  very  dif- 
ferent thing  may  it  please  the  Court  from  giving 
the  acts  of  other  persons  entirely  unconnected 
with  the  transaction  which  is  the  foundation  of 
the  charge.  Now  I  deem  that  part  coming  from 
the  learned  counsel,  who  by  the  discussion  for 
the  defendants  has  stated  what  would  be  irrele- 
vant, and  that  is,  that  Lewis  who  went  to  Hanway 
on  the  morning  of  that  transaction  to  give  him 
notice  that  there  were  kidnappers  at  the  house 
would  be  evidence.  But  I  do  not  suppose  that 
that  which  happened  nine  months  previously  is 
at  all  relevant  in  this  case,  and  that  an  outrage 
committed  upon  some  citizen  in  the  neighborhood 
should  be  given  in  evidence  at  this  time.  This  is 
a  distinct  charge  altogether,  and  altogether  un- 
connected with  the  fact  proposed  to  be  proved, 
and  therefore  I  cannot  see  the  relevancy  of  the 
evidence,  or  how  that  it  would  prove  the  intention 
with  which  Hanway  resorted  there  on  that  occa- 
sion. Take  the  intervening  fact  that  Lewis  called 
on  him  in  the  morning,  that  would  be  enough  to 
justify  him  in  g^g^h^re  if  he  acted  properly 
when  he  was  there.  ■  But  wSteo  away  nine  months . 
to  prove  that  there  had  befn-  kj^jgning  in  the 
neighborhood  is  no  ground  from^wmcii  the  jury 
can  infer  an  intention,  whether  of  crime  or  inte- 
ferance  to  prevent  crime  on  the  part  of  the  pnU^! 
ner.  This  is  proving  a  particular  act  of  otherf 
persons,  and  I  cannot  see  its  relevancy  to  this 
case.  I  cannot  conceive  from  the  opening  made 
by  Mr.  Cuyler  how  nine  months  previous  to  the 
passage  of  this  act,  any  thing  that  transpired 
then,  can  affect  this  issue. 

Mr.  Stevens.    It  was  in  February, 

Mr.  Cuyler.    It  was  in  January. 

Mr.  Cooper.  Then  it  was  since.  However,  the 
master  would  have  had  a  right  to  seize  and  carry 
away  his  slave,  and  he  would  not  be  liable  for 
any  breach  of  the  peace,  or  any  misdemeanor  in 
so  doing.  Then  it  is  this  view  that  the  counsel 
took  of  it,  and  the  case  presented  by  my  colleague. 
I  think  has  reference  entirely  to  another  state  of 
facts.  I  will  read  a  paragraph,  which  is  the 
syllabus  of  the  case  now  before  us.  We 
have  also  a  decision  to  that  point  in  the  case  of 
Burr.  After  the  overt  act  was  proved,  it  was 
decided  that  other  overt  acts,  although  commit- 
ted out  of  the  district,  ia  another  district,  (for 
instance,  in  the  district  of  Kentucky,)  might  be 
proved. 

But  that  has  no  reference  to  the  state  of  facts, 
such  as  is  presented  by  the  prisoner's  counsel, 
It  has  reference  only  to  the  fact,  that  the  con- 
spiracy, however  far  back  it  extends,  may  be  ! 


given  in  evidence,  and  all  the  acts  in  relation  to 
it,  may  be  presented  before  the  jury  on  trial  of 
the  cause, 

Judge  Grier.  The  United  States,  in  this  case, 
must  endeavor  to  show,  or  will  argue,  (I  cannot 
say  whether  correctly  or  incorrectly,)  from  cer- 
tain premises,  a  certain  intention.  They  have 
given  evidence,  that  a  negro  or  mulatto  went 
down  and  said  that  kidnappers  were  abroad,  and 
delivered  a  letter  containing  certain  hierogly- 
phics, and  with  a  notification  about  kidnappers, 
as  they  call  them ;  they  might  argue  from  this 
an  evidence  of  conspiracyin  the  whole  neighbor- 
hood. But  these  men  might  not  have  under- 
stood it  so  ;  and  though  masters  were  there  with 
proper  process  to  arrest  a  runaway,  I  think  it 
will  be  proper  for  the  defendant  to  show,  that 
kidnappers  had  been  about,  and  there  was  a  de- 
gree of  insecurity  among  the  free  negroes  who 
resided  in  that  neighborhood.  There  are  numer- 
ous ways  in  which  it  might  be  shown,  that  such 
was  a  public  rumor  and  so  believed.  There  may 
be  many  ways  of  proving  such  a  belief,  and  none 
better  perhaps,  than  by  proving  the  facts,  upon 
which  the  belief  was  founded ;  and  if  the  belief 
existed,  it  might  be  proved,  though  not  founded 
on  facts. 

Suppose  the  sheriff  came  to  my  door,  and 
I  fired  at  him  out  of  my  window  and  killed 
him,  under  such  circumstances  you  might  infer  I 
did  it  with  the  intention  to  murder  an  officer  of 
the  law.  But  suppose  I  could  show,  that  a  few 
nights,  or  even  months  ago,  a  person  had  broken 
into  my  house,  and  committed  a  rbbbery,  would 
you  not  infer  from  that  fact,  that  my  mind  was 
bent  upon  something  else,  and  far  from  my  inten- 
tion to  murder  the  sheriff? 

For  that  very  same  re;U^n  |he  same  state  of 
facts  might  justly  applY to%,  case  like  this,  and 
where  a  whole  neighborhood  might  be  ready  to 
come  together  in  a  ca^c  of  notice  given  that-kid- 
iiappers  were  abroad,  and  nrolor  the  purpose  of  a 
conspiracy  to  resist  ^rt&awsV". 

All  the  exceptions  they  have  taken  to  the  law 
of  1850 — I  say  nof^jiyistanding  all  the  except- 
ions taken  with  regamflfc|£>  that ,  law!  ,it  was  the 
first  law  that  properly  protected  the  colored 
man.  Never  was  a  law  in  my  opinion  so  unjustly 
treated  with  odium.  It  is  the  first  that  gives  the 
black  any  security.  Henceforth  {he  arrest  of 
the  master  can  be  distinguished  from  the  seizure 
of  the  kidnapper;  and  no  apology  left  for  oppo- 
sition, through  mistake  of  the  character  of  the 
person  making  the  arrest.  It  is  the  opinion  of 
the  Court  that  the  evidence  will  have  to  be 
received. 

Mr.  Stevens.  Where  did  you  reside  last 
winter  ? 

Answer.  At  my  son-in-law's  in  Sadsbury 
township. 

Question.  Will  you  be  so  good  as  to  state 
any  fact  which  you  know  relative  to  carrying 
off  a  colored  man  last  winter,  and  at  what 
time  ? 

Answer.  It  was  in  the  month  of  January.  I 
do  not  know  the  exact  day  of  the  month.  In  the 
evening  a  little  after  night  my  son  and  two  of  my 
grandsons  were  out  of  doors  ;  they  came  into  my 


UNITED  STATES  V.  HANWAY. 


115 


house  and  told  my  son-in-law  there  were  two  men 
outside  who  wanted  to  see  him. 

Mr.  Ashmead.  Is  all  this  conversation  to  be 
given  in  evidence  ? 

Judge  Grier.  He  is  going  to  relate  a  certain 
fact  which  might  have  created  a  certain  feeling  1 
in  the  neighborhood,  and  there  is  no  use  of  making 
any  objections  to  it.  The  best  way  is  to  let  a 
man  go  on  and  tell  his  own  story  his  own  way, 
and  he  will  always  get  along  the  quickest.  It 
will  do  us  no  harm,  if  it  does  us  no  good,  so  let 
it  go. 

Witness. — These  men  told  the  boys  they 
wanted  to  buy  chickens,  and  that  they  had  heard 
my  son-in-law  had  chickens  to  sell.  He  went 
out  and  talked  some  ten  minutes,  I  suppose, 
and  told  them  he  had  not  any.  They  came 
up  to  the  porch  and  they  talked  there.  One  of 
them  looked  in  at  the  window.  I  was  inside.  I 
did  not  go  out  of  the  house  at  all  this  time.  But 
one  looked  into  the  window,  and  the  black  man 
was  sitting  behind  the  stove.  They  couldn't 
help  seeing  him  :  they  then  went  away,  and  in  a 
few  minutes  after  they  were  gone  away,  neigh- 
bor James  Hay  came  running  to  the  house,  and 
told  my  son-in-law,  his  brother  John  had  been 
out  from  home,  and  had  fell  down  dead  as  he 
entered  the  door  of  his  own  house.  This  created 
a  great  deal  of  alarm  in  the  family,  and  my  son- 
in-law  went  immediately  to  the  house  to  see  as 
to  what  James  came  for  him  to  do.  I  remained 
there  about  half  an  hour,  as  near  as  I  can  re- 
collect ;  some  person,  knocked  at  the  door.  I 
told  them  to  come  in.  Two  persons  entered 
abreast  as  near  as  I  could  tell,  and  asked  whe- 
ther such  a  man,  calling  the  man  by  a  different 
name  from  what  he  had  went  by,  (I  do  not  re- 
collect what  they  did  call  him,)  and  before  I  had 
time  to  make  any  reply  they  made  no  halt.  I 
was  standing  between  the  door  and  the  black 
man.  He  was  sitting  behind  the  stove  with  his 
boots  and  hat  off.  They  passed  right  by  me  to 
him,  and  presented  a  pistol  to  his  head,  and  told 
him  they  would  blow  his  brains  out  if  he  made 
any  resistance.  I  did'nt  speak  to  them  at  all 
after  they  entered  the  door.  A  struggle  ensued 
between  the  black  man,  and  then  there  was 
others  followed,  but  I  don't  know  how  many  by 
the  way,  and  a  struggle  ensued  between  those. 
I  suppose  the  black  man  resisted :  they  were 
between  him  and  me,  and  I  could  not  see  what 
was  going  on.  I  was  sitting  at  the  table  read- 
ing, and  when  they  came  up  I  passed  a  little 
towards  the  door.  I  suppose  five  or  six  had 
come  in,  and  just  as  I  came  near  the  door  there 
was  a  person  came  in,  near  right  facing  me :  he 
had  a  stick  in  his  hand  (opening  his  hands)  about 
that  length,  and  I  seen  something  sticking  out 
partly  from  the  cuff  of  the  coat  and  partly  in- 
side. I  judge  it  was  a  slung  shot.  He  passed 
right  by  me,  he  struck  the  lamp  and  it  fell  on 
the  floor  and  went  out  ;  and  after  that  it  was 
dark,  and  I  do  not  know  or  I  could  not  tell  much 
what  passed  between  the  parties.  But  a  few 
minutes  after  this,  (not  more  than  two,)  my 
daughter,  who  was  Chamberlans'  wife,  it  was 
right  over  the  kitchen,  and  she  was  right  over 
head  when  they  came  in  first :  she  come  down 


and  begged  of  me  to  come  up  stairs,  she  thought 
I  would  get  hurt,  and  appeared  to  be  frantic  with 
fright.  I  accordingly  went  up  stairs,  and  re- 
mained there  till  these  persons  left  the  house. 
They  were  about  dragging  the  man  out  to  the 
porch  when  we  went  up  stairs.  They  bound 
him  and  dragged  him  off.  I  didn't  see  them  bind 
him. 

Jupoe  Grier.    How  many  were  there  ? 

Ax  saver.  I  suppose  some  six  or  seven  in  the 
house,  and  some  outside,  I  suppose. 

Mr.  Stevens.    Did  you  track  them  ? 

Answer.  After  they  went  away,  as  we  sup- 
posed, I  went  down  and  got  a  little  light,  a  can- 
dle, and  examined  the  floor  where  they  had  him 
on  the  porch.  I  found  large  quantities  of  blood 
along  on  the  porch  floor,  and  next  morning  when 
I  got  up,  the  first  thing  I  done,  I  tracked  them 
by  the  blood.  It  was  along  the  road  they  drag- 
ged him,  along  to  the  woods;  and  after  I  had 
passed  on,  it  was  there  where  it  appeared  there 
had  been  a  horse  and  carriage  standing ;  and  that 
is  about  all  I  know. 

Question.  Did  you  know  any  of  those  per- 
sons ? 

Answer.  I  know  one  of  the  persons  that 
came  in;  the  one  I  speak  of,  that  came  in 
last.  1 

Question.    Who  was  he  ? 

Answer.  He  goes  by  the  name  of  Perry 
Marsh. 

Question.    Where  does  he  reside  ? 

Answer.  I  understood  he  resided  in  the 
neighborhood  of  the  Gap,  and  there  he  kept  an 
oyster  house.  I  never  was  in  there.  I  have 
been  at  the  Gap  many  a  time. 

Mr.  Cooper.  What  was  the  name  of  your 
son  ? 

Answer.    William  Marsh  Chamberlain. 

Question.  Did  you  know  the  name  of  the 
negro  that  was  taken  away  ? 

Answer.  I  understood  that  he  had  lived  with 
him  in  the  neighborhood  of  eighteen  months,  but 
he  had  been  away  previous  to  this  circximstance. 
He  had  left  my  son-in-law  some  weeks  before  ;  I 
dont  know  how  long,  and  was  away  about  three 
weeks  in  consequence  of  being  afraid  of  remain- 
ing in  the  neighborhood  for  fear  of  being  taken 
up,  for  it  was  reported  that  that  the  free  blacks 
were  no  safer  under  existing  circumstances  than 
the  runaways  were,  and  he  went  away,  but  he 
had  returned  after  the  excitement  was  a  little 
over,  and  was  living  there  again. 

Question.  How  long  had  he  been  away  from 
your  son-in-law  from  the  time  when  he  first  came 
there  ? 

Answer.    Ahout  eighteen  months. 

Question.  Had  he  been  in  the  neighborhood 
before  that  ? 

Answer.  Not  that  I  know  of.  I  did  see  him 
once  at  Penningtonville  previous  to  the  time 
when  he  went  to  live  with  my  son-in-law. 

Question.  Do  you  know  whether  he  was  a 
free  man  or  a  slave  ? 

Answer     I  dont  know  anything  about  it,  sir. 

Question.  You  stated  you  didn't  know  the 
names  of  any  other  persons  except  Perry 
Marsh? 


116 


TREASON  CASES. 


Answer.  1  do  not  know  anybody  else  that 
came  into  the  house. 

Question.    Had  you  seen  them  before? 

Answer.  I  do  not  know  that  I  did  ;  I  did  not 
recognize  any  person  that  I  knew  among  them. 

Question.  Did  you  not  know  that  this  black 
man  was  a  runaway  slave  ? 

Answer.  I  did  not  know  whether  he  was  or 
not. 

Question.    Didn't  you  know  ? 

Answer.  I  did  not  know.  I  heard  it  said 
he  had  come  from  Maryland,  but  I  do  not  know 
any  thing  about  the  fact. 

Question.  You  know  not  whether  he  was,  or 
not,  but  it  was  understood  that  he  had  come  over 
from  Maryland  ? 

Answer.  I  heard  he  had.  I  never  talked 
with  anybody  about  him  except  it  was  in  the 
family.    I  do  not  know  the  general  impression. 

Question.  Were  not  these  persons  that  came 
the  masters  and  his  agents  ? 

Answer.  I  do  not  know  who  they  were.  I 
knew  but  one  man,  whose  name  I  have  men- 
tioned. 

Question.  Didn't  they  state  he  was  a  runa- 
way slave  ? 

Answer.  I  heard  no  statement  at  all  as  I 
told  you  before,  (Mr.  Cooper.  Well,  then,  don't 
get  angry.)  they  said  nothing  to  me,  nor  I  to 
them,  except  the  question  they  asked,  when  they 
came  in  at  the  door. 

Question.    What  name  did  the  negro  go  by  ? 

Answer.  John,  is  what  they  called  him 
there. 

Question.    Had  he  any  other  name  ? 

Answer.  I  never  heard  of  any  till  they  came 
and  asked  for  him  by  another  name.  It  was  the 
name  they  called  him. 

Question.  Did  they  state  there  was  such  a 
man,  by  a  name  different  from  that  of  John. 

Answer.  They  only  asked  if  you  have  such 
a  man,  or  is  he  in  the  house. 

Question.  Was  that  question  addressed  to  you  ? 

Answer.  I  think  it  was,  but  I  made  no  reply. 

Question.  Did  you  know  that  he  had  gone  by 
that  name  before  ? 

Answer.  No,  I  didn't.  I  never  heard  of  it 
before,  his  having  another  name.  I  didn't  know 
any  thing  about  that. 

Question.  Were  there  firearms  used  on  that 
occasion  ? 

Answer.  They  presented  a  pistol  to  his  head. 
I  didn't  see  any  thing  but  one.  Those  two  per- 
sons who  first  came  in,  I  saw  no  other  firearm? 

Question.  You  stated  that  was  in  January, 
1851  ? 

Answer.  Yes,  sir,  that  was  the  time,  the  day 
of  the  month  I  do  not  know  it.  I  do  not  recol- 
lect, some  say  it  was  the  13th 

Question.  State  if  it  was  not  generally  un- 
derstood, in  the  neighborhood,  he  was  a  fugitive 
slave  ? 

Answer.  I  do  not  know  any  thing  about  that, 
for  I  never  heard  anybody  speak  of  him  out  of 
the  family  at  all. 

Question.    In  the  family? 

Answer.  They  have  never  talked  to  me 
Whether  he  was  a  slave  or  not. 


Question.  You  mentioned  you  thought  you 
had  heard  him  spoken  of  as  a  fugitive  slave. 
Who  was  it  ? 

Mr.  Stevens.    As  coming  from  Maryland. 

Mr.  Cooper.  What  took  him  aAvay  during 
the  time  he  left  your  son-in-law,  the  beginning 
of  those  three  weeks. 

Answer.  What  I  understood  was  the  cause 
of  his  going  away,  he  became  alarmed,  him  and 
others,  in  consequence  of  a  black  man  being 
kidnapped  in  the  same  manner  that  he  was,  at  a 
house  about  a  mile  from  my  son-in-law. 

Question.  Do  you  know  there  was  a  man 
kidnapped  there,  as  you  call  it  ? 

Answer.  I  do  not  know  that  there  was.  I 
can  not  say  in  regard  to  that. 

Mr.  Brent.  How  long  have  you  lived  in 
Baltimore  ? 

Answer.    Since  the  first  of  September. 

Question.  How  long  had  you  stayed  at  your 
son-in-law's  at  Sadsbury  ? 

Answer.    I  had  been  there  about  two  months. 

Question.    Before  last  January  ? 

Answer.    Three  months  it  might  have  been. 

Question.  How  long  had  you  known  this 
colored  man  ? 

Answer.  Nearly  from  the  time  he  first  came 
there  to  live.  I  had  seen  him  at  different  times 
when  I  was  there. 

Question.  How  long  before  he  was  kidnapped? 

Answer.    Eighteen  months. 

Question.  Were  you  present,  when  he  first 
came  to  work  at  your  son-in-law's  ? 

Answer.    No,  sir. 

Question.  Not  present  when  he  bargained, 
were  you  ?  or  when  he  first  came  to  see  your 
son-in-law  ? 

Answer.    I  didn't  live  there  then. 

Question.    In  what  capacity  did  he  work  ? 

Answer.    As  a  laborer  on  the  farm. 

Question.  Were  other  blacks  in  the  employ- 
ment of  your  son-in-law  ? 

Answer.    He  didn't  keep  but  one. 

Question.  At  the  time  he  disappeared  before 
being  kidnapped,  how  many  blacks  left  at  the 
same  time  ? 

Answer.    There  was  a  number  went  away. 

Question.    Didn't  the  greater  part  remain  ? 

Answer.    There  was  several  went  away. 

Question.    Did  many  remain  ? 

Answer.  A  great  many  remained  who  didn't 
go  over.    There  was  a  great  panic  among  them. 

(Mr.  BrtENT.    What  you  call  a  "  stampede.") 

Question.  Can  you  tell  something  about  the 
struggle  ? 

Answer.  I  didn't  see  how  it  went  on,  they 
had  him  on  the  floor. 

Question.  Was  there  any  resistance  before  he 
fell,  on  his  part  ? 

Answer.  I  do  not  know  whether  there  was 
or  not. 

Question.  I  understood  you  to  say  he  re 
sisted  ? 

Answer.    No,  I  didn't. 

Question.^  The  black  man  struggled,  did  I 
understand  you  ? 

Answer.  I  say  that  a  struggle  ensued  be- 
tween him  and  the  parties. 


UNITED  STATES  V.  H  AX  WAY. 


117 


Question".  Then  you  don't  want  me  to  under- 
stand the  black  man  struggled  ? 

Answer.  There  appeared  to  be  a  struggle 
taking  place  between  them,  and  after  they  had 
broken  a  chair  into  four  or  five  pieces. 

Question.    Did  you  see  them  tie  him  ? 

Answer.  I  did  not  see  them  tie  him  because 
I  could  not  see  :  there  was  no  light. 

Question.  When  these  men  first  came  there, 
they  inquired  for  your  son-in-law  ? 

Answer.  When  them  two  men  I  spoke  of  came 
there,  they  told  the  boys  they  wanted  five  chickens, 
and  the  boy  came  in  and  told  his  father. 

Question.  You  didn't  hear  the  conversation 
between  them  ? 

Answer.    No,  I  didn't  hear. 

Question.  From  the  position  on  the  porch, 
you  think  they  must  have  seen  this  man  sit  be- 
hind the  store  ? 

Answer.    They  could  not  help  but  see  him. 

Henry  Bliay  is  called  and  sworn. 

Mr.  Stevens.  Inform  the  court  and  jury, 
whether  last  January,  the  night  an  outrage  was 
said  to  be  committed  at  Chamberlain's,  you  went 
there,  and  what  you  saw  ? 

Answer.  About  eight  o'clock,  I  do  not  recollect 
the  day  of  the  month,  it  was  on  Monday  evening 
in  February,  I  came  along  about  eight  o'clock,  I 
overtook  a  company  at  the  end  of  Marsh  Cham- 
berlain's lane  ;  Imought  there- was  about  ljal£  a  J 
dozen;  I  cam6  up  and  one-came  Up  to  me  ar.d 
said,  "Say  nothing;"  he  nad  something  in  his 
hand  I  took  to  be  a  pistol,  I  was  not  certain,  and 
I  told  him  I  would  say  what  I  pleased,  and  that 
was,  that  they  were  after  no  good.  I  was  about 
to  leave,  and  one  of  the  men  in  the  company  said 
they  were  going  to  Marsh  Chamberlain's,  to 
take  a  black  man. 

Question.  Who  was  the  person  that  had  a 
weapon  in  his  hand,  and  told  you  to  say  nothing? 

Answer.    Perry  Marsh. 

Question.  Did  you  know  any  other  of  the 
party  ? 

Answer.  .  Yes,  sir,  one  more. 
Question.    Who  ? 
Answer.    William  Bear. 
Question.    Where  does  he  reside? 
Answer.    Three  or  four  miles  from  the  Gap 
tavern. 

Question.  What  county  was  it,  Lancaster  or 
Chester  ? 

Answer.  Lancaster  ;  it  was  a  new  township 
adjoining  Sadsbury. 

Mr.  Brent.    How  far  from  Parker's  house  ? 

Answer.    About  three  miles. 

Question.  You  didn't  say  that  he  held  a  pistol 
to  your  breast  ? 

Answer.  No,  sir  ;  he  raised  it  up  ;  I  am  not 
certain  whether  it  was  or  not ;  it  was  a  weapon ; 
I  am  not  too  certain  what  it  was  ;  I  could  not 
positively  tell. 

Question.    He  told  you  to  say  nothing  ? 

Answer.  Yes  ;  and  I  told  him  I  would  say 
what  I  pleased. 

Question.  Did  you  know  the  colored  man 
that  they  took  from  his  house  ? 

Answer.  I  never  should  know  him  if  I  saw 
him  ;  I  have  seen  him,  but  not  to  know  him. 


Question.  How  many  did  you  see  in  com- 
pany ? 

Answer.    About  half  a  dozen. 
Question.    All  you  know  lived  in  that  town- 
ship? 

Answer.  No,  sir.  Perry  Marsh  lived  near 
the  Gap  tavern.  I  do  not  recollect  of  him  having 
any  regular  home. 

Question.    Where  did  you  generally  see  him? 

Answer.    About  the  Gap  sometimes. 

Question.  Then,  all  resided  in  Pennsylvania 
that  you  knew  of  ? 

Answer.  Yes,  sir  ;  and  the  others,  whether 
they  were  strangers  or  not,  I  could  not  say.  I 
did  not  see  their  faces. 

Question.  How  long  did  you  reside  in  that 
neighborhood  ? 

Answer.    Ever  since  I  knew  any  thing  at  all. 

Question.  Do  you  reside  three  miles  from 
Parker's  house,  yourself  ? 

Answer.    I  reside  near  three  miles. 

Question.  Were  you  there  at  all  on  the  day 
of  this  transaction? 

Answer.    No,  sir.  4 

Question.  You  know  nothing  abffct  the  trans- 
action? M 

Answer.    No,  sir.  w 

Question.  Do  you  know  of  any  meeting,  large 
or  small  in  that  neighborhood,  on  the  subject  01 
the  Fugitive  Slave  Law,  as  it  is  called  ?,**' 

Me.  Stevens.  I  object  to  th'.s  testimony  ;  it 
is  testrmo]%'-in-cl?ief  if  testimony  at  all.  %•* 

Judge  Grier.  I  do  not  know  that  in  a  cross- 
examination  you  can  try  to  make  witnesses  for 
yourself  in  entirely  different  matters.  Cross-ex- 
aminations must  have  reference  to  examinations- 
in-chief,  and  the  subject  matter  produced  by  them. 
If  the  witness  knows  any  thing  for  you,  you 
ought  to  produce  him  as  your  witness,  and  not 
make  him  your  witness  by  cross-examination  on 
entirely  different  matters.  It  is  irregular  to  cross- 
examine  a  witness,  except  on  the  subject  matter 
of  his  examination-in-chief ;  if  you  want  the 
witness,  you  should  produce  him  yourself. 

Mr.  Brent.    We  will  reserve  it. 

Judge  Grier.  You  have  already  made  your 
case  upon  which  the  United  States  must  stand  or 
fall.  You  have  a  right  to  cross-examine,  to  show 
how  far  the  defendant's  witnesses  have  told  the 
truth,  and  to  bring  rebutting  testimony  ;  but  not 
to  start  new  subjects  with  the  cross-examination 
of  their  witnesses. 

Mr.  G.  L.  Ashmead.  You  have  said  that  Wm. 
Bear  resided  3  or  4  miles  from  the  Gap  Tavern  ? 

Answer.    About  three  or  four. 

Question.    On  what  road  ? 

Answer.  On  the  way  from  the  Gap  to  Stras- 
burg. 

Question.    What  direction  is  that  ? 

Answer.    West  from  the  Gap  Tavern. 

Mrs.  R.  A.  Chamberlain  is  called  and  affirms. 

Mr.  Stevens.  Inform  the  Court  and  Jury 
what  took  place  at  your  house  in  January  last, 
relative  to  taking  a  colored  man  away  ? 

The  witness  here  was  unable  to  speak  on  ac- 
count of  a  disease  of  the  heart  to  which  she  was 
subject. 


118 


TREASON  CASES. 


Mr.  Stevens.  When  you  feel  well,  just  state  ; 
the  facts  to  the  jury. 

Witness.  I  reside  in  Sadbury  township,  Lan- 
caster county.  There  was  a  set  of  men  came 
into  the  house  and  knocked  the  colored  man 
down  and  beat  and  abused  him  in  a  cruel  man- 
ner. It  is  not  necessary  perhaps  to  say,  that  I 
was  up  stairs  at  the  time,  and  by  means  of  a 
stove-pipe-hole  I  saw  all  that  was  done.  I  saw 
them  present  a  pistol  to  him,  and  then  I  came 
down  stairs.  I  have  been  very  much  injured  by 
it,  and  I  have  never  been  well  since. 

Mr.  Cooper.  I  will  ask  you  one  question, 
madam.  Was  there  any  light  in  the  room  below? 

Answer.  Yes,  sir,  when  they  first  came  in ; 
it  was  soon  knocked  out. 

Question.  You  saw  the  man  knocked  down. 
Wliat  was  he  knocked  down  with  ?  Did  you  see 
him  struck  ? 

Answer.  I  did  not.  I  thought  it  was  a  pistol. 
I  cannot  tell. 

Question.  Are  you  sure  the  weapon  you  saw 
was  a  pistol  ? 

Answer.    Yes,  sir.$ 

iQtlESTiONm  De^ytoL^knoTS,  in  whose  hands  it 

wa^X     \*  '  V. 
Answer.  iPo,  sir. 

Miller  Penington  was  called  and  sworn. 

Mr^Stevens.  Please  to  inform  the  Court 
and  jurV  what  you  know,  of  the  trar^yiction  at 
yAur*  sii^Fs  in  Sadbury>township^  reBffcre  ut9 
tn^pking  awayqpf  the  colored 'man.  1>    *  *** 

Answer.  The  13th  of  last  January,  there  was 
about  six  or  eight  men  came  to  my  sister's  house 
and  took  away  a  colored  man. 

Question.  State  what  you  saw  with  regard 
to  it. 

Answer.  The  men  came  to  the  door,  and 
knocked.  Father  was  sitting  down  to  the  table 
reading.  He  spoke  up,  and  says  to  them  "  Come 
in."  They  come  in  two  of  them  abreast.  When  they 
came  in,  I  ran  up  a  pair  of  steps,  to  run  to  a 
neighbors,  but  I  was  headed  off  by  a  couple  o 
men,  who  came  round  the  house. 

Question.    How  many  did  you  see  outside  ? 

Answer.  Two. 

Question.  Which  side  of  the  house  did  you  go, 
the  same  side  of  the  house  they  came  in,  or  the 
back  side  ? 

Answer.  The  North  side ;  they  came  in  on 
the  South  side. 

Elijah  Lewis,  is  called  and  affirms. 

Mr.  G.  L.  Ashmead.  Mr.  Ashmead  is  absent. 
I  understand  there  will  be  an  objection  to  this 
testimony. 

Judge  G-rier.  If  he  is  away  accidentally,  we 
will  detain  the  witness ;  but  if  he  is  attending 
to  business  in  another  Court,  the  testimony  must 
go  on. 

Mr.  Brent.  It  was  understood  that  Mr.  Ash- 
mead would  offer  an  objection  to  this  testimony. 
The  inquiry  will  be,  whether  this  witness  is  in- 
terested in  the  present  record,  as  an  instrument 
of  evidence  in  any  other  suit  or  prosecution  now 
pending.  In  the  present  case,  the  indictment 
charges  Castner  Hanway  of  having  confederated 
with  certain  persons,  to  the  grand  jurors  un- 
known.   If  the  witness  is  interested  in  this 


record,  and  that  it  can  be  read  out  to  the  satis- 
faction of  the  Court,  he  is  an  incompetent  wit- 
ness to  the  obtaining  such  a  verdict.  I  hold  an 
indictment  certified  by  the  District  Court,  for  the 
next  term  of  this  Court,  in  which  Castner  Han- 
way, Elijah  Lewis,  and  Joseph  Scarlet  are  charged 
with  levying  war  with  the  United  States. 

There  is  also  another  indictment,  in  which 
all  these  defendants,  Hanway,  Lewis,  and  Scar- 
let, and  all  the  colored  persons,  are  jointly 
charged. 

The  point  sbbmitted  is  this.  If  Elijah  Lewis 
shall  give  testimony  in  behalf  of  Castner  Han- 
way to  this  jury,  which  will  prevent  a  verdict  of 
capital  punishment  in  favor  of  Hanway,  whether 
that  testimony  will  not  enure  to  the  acquittal  of 
Lewis  on  both  these  joint  indictments  ;  Hanway 
cannot  certainly  be  tried  again. 

He  can  not  again  be  put  upon  his  trial  upon 
this  same  charge,  if  the  indictment  charged 
is  overcome  by  the  testimony  of  the  witness, 
and  if  the  result  of  this  trial  be  such  between 
Hanway  and  Lewis,  as  to  acquit  Hanway. 

He  can  not  again  be  put  upon  trial  for  the 
same  offence,  and  the  result  must  necessarily  be 
that  it  will  acquit  Lewis  from  both  these  indict- 
ments for  the  same  offence,  and  once  being  ac- 
quitted of  the  offence  charged,  ha  cannot  be 
compelled  to  go  before  anotkei^ry. ^Therefore 
I  wifmit  th^ Elij-ah* T^iS^  l^ng* directly  in- 
VfestlS*  in  tMkrecom%^  insnlinient  of  evi- 
1  dehce*  that  he  -will  be  giving  testimony  to  pro- 
cure an  acquittal  for  himself  in  these  joint 
indictments.  The  authorities  upon  the  point  I 
will  refer  the  Court  to,  are  to  be  found  in  Green- 
leaf  on  Evidence,  vol.  i.  p.  404. 

I  hold,  if  your  honors  say  that  this  record  will 
form  a  single  link  in  the  chain  of  evidence  in 
this  case  pending  against  Elijah  Lewis,  I  now 
contend  he  is  an  incompetent  witness,  and,  un- 
questionably, the  indictment  charges  a  joint 
offence  between  him  and  the  prisoner  on  his 
trial.  If  Castner  Hanway  be  tried  and  acquitted 
of  this  treason,  and  a  verdict  be  procured  by 
Elijah  Lewis,  so  far  as  his  evidence  is  tenable, 
I  submit  to  your  honors  that  he  is  not  an  im- 
partial witness. 

I  presume  upon  a  separate  trial  of  A,  B  could 
not  be  a  competent  witness,  except  the  acquittal 
of  A  would  be  to  acquit  B,  joint  offences  being 
charged,  A  must  be  proved,  and  one  of  the 
parties  being  tried  and  acquitted  of  that  offence, 
the  other  could  not  necessarily  be  guilty  of  the 
charge.  I  hold  it  to  be  perfectly  clear,  there- 
fore, that  although  in  this  present  indictment 
Elijah  Lewis  is  not  named  ;  although  the  other 
conspirators  are  said  to  be  unknown,  yet,  in  point 
of  fact,  if  this  be  the  same  offence  and  the  same 
prosecution,  it  will  not  be  proper  that  Lewis 
should  be  a  competent  witness  on  this  trial  of 
Hanway. 

Judge  Grier.  Suppose  you  indicted  100 
persons  for  treason,  could  not  a  jury  find  one 
portion  guilty  and  another  portion  not  guilty. 
Mr.  Brent.  I  do  not  deny  that  position. 
Judge  Grier.  Then  if  one  had  been  tried, 
and  condemned  or  acquitted,  would  that  affect 
the  others  ? 


UNITED  STATES  V.  HAIWAT. 


119 


Mr.  Brent.    On  a  joint  indictment. 

Judge  Grier.  Suppose  you  have  got  30  or 
40,  what  reason  is  there  if  a  jury  find  one  guilty, 
that  the  others  should  not  be  acquitted  ? 

Judge  Kane.  I  would  suggest  further :  sup- 
posing  there  were  many  indicted  for  treason, 
and  on  their  trial  together,  and  no  evidence 
given  against  one  of  the  defendants,  could  not 
the  Court  direct  a  verdict  of  acquittal  as  to 
him  in  order  to  make  him  a  witness  for  the 
defence  ? 

Mr.  Brent.  I  presume  the  Court  would  have 
to  direct  an  acquittal  in  order  to  qualify  him  as  a 
witness.  Here  there  have  been  no  verdicts,  here 
is  a  party  brought  into  Court  to  testify  for  a  de- 
fendant who  is  indicted  with  him.  I  agree  that 
where  there  is  a  joint  offence  charged,  that  per- 
haps the  acquittal  of  some  would  necessarily 
acquit  the  rest.  But  your  honors  will  perceive 
this.  There  are  twenty.  Lewis  is  indicted  with 
having  conspired  with  twenty  named  conspirators. 
Is  he  a  competent  witness  to  give  testimony  "ad 
seriatim,"  and  thus  acquit  himself  and  the  rest 
of  the  conspirators  ?  that  is  the  inevitable  effect. 
Here  is  Elijah  Lewis  indicted  for  having  levied 
war  against  the  United  States  in  combination 
with  certain  named  persons.  Can  he  be  con- 
victed in  that  indictment,  if  every  one  has  been, 
acquitted  ?  If  he  is  competent  to  testify  in  th§ 
trial  of  Castner  Hanway,  and  acquit  him,  he  is 
competent  to  testify  upon  the  trial  of  any  of  the 
others  and  acquit  them.  This  is  necessarily  in- 
evitable. Again,  if  Hanway  is  acquitted  in  this 
trial,  he  is  no  competent  witness  for  Elijah  Lewis, 
he  is  no  witness  for  him  on  his  trial.  But  if 
Hanway  is  convicted,  then  Lewis  is  deprived  of 
the  benefit  of  his  testimony. 

But,  I  put  it  upon  the  ground  that  he  is  in- 
dicted in  two  indictments,  one  associated  with 
all,  and  the  other  associated  with  Scarlet  and 
Hanway  alone.  Of  course  he  has  an  interest  to 
defend  both,  in  a  crime  that  if  convicted,  the 
penalty  is  death.  Now  shall  he  in  detail,  by  his 
own  testimony,  acquit  each  one  of  his  colleagues 
in  the  offence  charged.  Shall  he  acquit  Hanway, 
and  then  strike  Hanway's  name  out  of  that  in- 
dictment ;  shall  he  give  testimony  which  shall 
strike  Scarlet's  name  out  of  that  indictment  ? 

This  bill  charges  Lewis  with  the  same  offence 
as  these,  both  of  whom  are  acquitted.  If  I  am 
right  in  this,  though  I  do  not  wish  to  exclude  any 
evidence  on  the  part  of  the  prisoner,  although 
he  is  said  to  be  "  particeps  criminis,5'  and  I  only 
suggest  whether  he  is  not  an  incompetent  witness 
in  this  case  under  such  circumstances? 

Judge  Grier.  Could  you  find  any  precedent 
that  by  sending  up  another  bill  of  indictment 
including  the  witness  jointly  with  the  prisoner 
and  others,  you  can  thus  deprive  the  prisoner  of , 
his  witness.  Is  there  any  such  instance  to  be 
found  in  the  books  of  reports  ? 

Mr.  Cooper.  Perhaps  the  Court  may  derive 
some  light  from  a  precedent  I  hold  in  my  hand, 
where  approvers  and  accomplices  who  are  indict- 
ed are  reserved  witnesses  under  the  same  rule. 
Formerly,  certainly  it  was  the  law  that  an  accom- 
plice who  turned  approver  could  not  be  examined 
until  he  first  confessed  himself  guilty  of  the  of-  , 


fence.  It  was  necessary  in  the  first  place  he 
should  confess  himself  guilty  of  the  offence  before 
being  competent  to  give  evidence  for  the  Crown. 
It  was  regarded  in  a  certain  species  of  offences 
that  on  the  ground  of  policy  it  was  necessar}-  that 
such  evidence  should  be  reserved.  But  I  believe  it 
never  was  received  until  the  approver  in  the  first 
place  had  confessed  himself  guilty.  I  will  read 
a  paragraph  from  McNalley  on  evidence,  page 
125,  top  marginal  page  124.  (Reads.) 

I  suppose  the  law  is  the  same  still,  I  know 
of  no  change,  I  do  not  see  that  there  has  been  a 
change,  the  next  paragraph  states  the  law  being 
still  in  force.  (Reads.) 

If  we  are  right,  he  cannot  be  a  witness,  and 
for  the  same  reasons  also  under  the  rule  that 
was  suggested  by  my  colleague  Mr.  Brent.  Be- 
cause that  the  acquital  of  others  under  certain 
circumstances  (in  this  it  would  be  so.)  enure  to 
his  benefit.  The  record  would  enure  to  his  benefit 
and  therefore  it  was  necessary  in  the  first  place, 
he  must  confess  he  was  particeps  criminis,  and 
thus  being  admitted  to  mercy  on  the  part  of  the 
Court,  he  could  be  used  as  a  witness,  but  until  he 
did  confess  they  would  not  allow  him  to  testify,  so 
that  it  would  enure  to  his  benefit  by  the  acquital 
of  others  and  thereby  acquit  himself.  That  is 
all  I  have  to  say  upon  the  present  subject,  as  I 
have  not  prepared  myself  for  it. 

Mr.  Brent.  have  an  authority.  It  is 
a  decision  to  be  met  in  5th  Espinasse ;  it  ap- 
pears to  be  confined  to  conspiracy,  but  not  to  of- 
fences which  could  be  committed  severally.  For 
instance,  with  regard  to  assault  and  battery, 
which  does  not  require  a  conspiracy,  I  do  not 
think  it  would  be  right  to  deprive  a  party  of  a 
witness  by  procuring  a  joint  indictment.  But 
where  the  combination  is  the  gist  of  the  offence, 
and  where  a  party  cannot  be  guilty  unless  he  has 
conspired  with  certain  named  individuals,  I  hold 
that  this  party  is  not  a  competent  witness,  be- 
cause if  they  are  proved  guilty,  he  must  also  be 
proved  guilty,  as  in  this  case  of  treason. 

Judge  Grier.  Suppose  three  were  indicted 
for  a  murder,  could  not  two  be  guilty  and  one 
innocent  ? 

Mr.  Brent.  Unquestionably,  your  honor  ;  for 
one  man  I  imagine  could  not  levy  war  against 
the  United  States. 

Mr.  Stevens.    One  old  woman  could. 

Mr.  Brent.  I  have' nothing  to  offer,  except 
the  case  of  Lavay. 

Mr.  Read.  That  is  not  law.  You  will  find  on 
p.  68,  in  Phillip's  Reports,  that  not  to  be  law. 

Mr.  Brent.  I  only  contend  it  to  be  in  cases 
of  combination. 

Mr.  Ashmead.  There  is  a  case  which  is  de- 
cidedly analagous,  which  was  decided  by  Judge 
King.  It  was  a  case  of  conspiracy,  where  three 
parties  were  jointly  indicted,  and  an  application 
was  made  that  one  of  the  defendants  might  be 
produced  to  testify  for  one  of  the  others.  Judge 
King  said, —  (Reads  from  Ashmead's  Reports.) 

Mr.  Cutler.  That  was  a  case  of  a  joint  in- 
dictment. 

Mr.  Ash:>iead.    Yes,  sir. 

Judge  Grier.  I  think  they  have  not  brought 
any  precedent  to  support  this  proposition  at  all. 


TREASON  CASES. 


120 


Mr.  Read.    They  cannot  find  one  at  all. 

Judge  Grier.  Having  indicted  the  prisoners 
severally,  you  cannot  deprive  one  of  them  of  the 
testimony  of  his  fellow,  by  afterwards  having  a 
joint  bill  found  against  them.  The  position  of 
the  witness  goes  to  his  credibility,  and  not  to 
his  competency.  The  jury  must  judge  of  its 
value. 

Mr.  Read.  Not  adding  to  all  your  Honor's 
decisions,  but  since  that,  I  have  received  an 
English  law  magazine  for  November,  in  which 
they  discuss  the  New  Act  of  Parliament  on  Evi- 
dence, in  which  anybody  is  a  witness  under  these 
circumstances. 

Judge  Kane.  In  the  common  law  there  is  this 
distinction  between  conspiracy  and  treason,  that 
conspiracy  is  an  offence  essentially  joint,  and 
there  must  be  a  joinder  in  the  indictment,  and 
a  conviction  of  more  than  one  to  support.  Trea- 
son may  be  committed  severally,  as  well  as 
jointly,  and  one  may  be  indicted  and  convicted 
alone. 

Mr.  Read.  I  refer  to  the  Statute  of  Edward 
the  Third. 

Elijah  Lewis  is  affirmed. 

Mr.  Stevens.  Will  you  be  so  good  as  to  state 
all  you  know  relative  to  the  transaction  at  Park- 
er's house  on  the  morning  of  the  19th  of  Septem- 
ber last,  so  far  as  affects  Mr.  Hanway.  Begin 
and  state  in  your  own  way,  the  transaction  as 
far  as  you  know  it. 

Witness.  On  the  morning  of  September  11, 
about  sunrise,  or  a  little  before,  Isaiah  Clarkson 
came  to  my  house  and  informed  me  that  Mr. 
Parker's  house  was  surrounded  by  kidnappers  ; 
that  they  had  broken  into  the  house  and  were 
about  to  take  him  away,  and  he  insisted  upon  my 
going  down  to  see  that  justice  was  done.  I  think 
those  are  the  words.  I  started  ;  and  on  my 
way,  having  to  pass  Castner  Hanway's  house,  I 
called  upon  him  and  requested  him  to  accompany 
me.  He  being  a  little  unwell,  he  had  to  get  his 
horse,  i  stated  to  him  what  the  messengers  had 
stated  to  me. 

Judge  Grier.    State  the  words. 

Witness.  That  Wm.  Parker's  house  was  sur- 
rounded by  kidnappers ;  that  they  had  broken 
in  and  were  going  to  take  him  away,  and  re- 
quested me  to  accompany  him,  to  see  that  justice 
was  done,  I  think  are  the  words  as  near  as  my 
memory  serves  me.  I  passed  on  a-foot,  and  he 
started  to  get  his  horse. 

Mr.  Stevens.    You  say  being  a  little  unwell? 

Answer.  Yes.  I  being  on  foot,  went  across 
the  fields  through  a  gateway.  He  took  the 
road  coming  into  the  lane,  the  long  lane  opposite 
to  the  house.  He  came  down  from  the  south, 
and  I  advanced  up  from  the  north.  He  was 
there  a  little  before  me.  I  there  saw  Kline 
coming  out  of  the  lane. 

Judge  Kane.    What  lane  ?    The  short  lane  ? 

Witness.  The  short  lane,  from  Parker  s 
house.  He  called  to  Hanway,  saying,  I  am  the 
Marshal  of  the  United  States.  Hanway  advanced 
a  few  steps,  and  we  met,  and  he  mentioned  to 
me,  "  This  is  the  Marshal."  I  inquired  if  he  had 
shown  any  authority,  he  said,  No.  He  then 
turned,  and  advanced  to  Kline,  and  I  asked  him 


to  show  his  authority.  He  then  took  out  a  pa- 
per, and  handed  it  to  me  to  read.  I  opened  a 
paper,  but  had  left  my  spectacles  at  home,  and 
could  not  read  it,  except  the  signature.  I  saw 
the  name  of  Edward  B.  Ingraham,  and  took  it  for 
granted  by  that,  that  he  had  authority. 

We  had  some  conversation ;  he  wanted  us  to 
assist  in  arresting  somebody,  I  don't  know  who, 
and  as  near  as  I  can  recollect  the  reply  of  Cast- 
ner Hanway,  he  said  he  would  have  nothing  to 
do  with  it,  or  something  to  that  effect.  By  this 
time  there  were  several  negroes  came  up  near 
the  lane,  where  we  were.  They  had  guns 
and  threatened  to  shoot.  Castner  Hanway  was 
sitting  on  his  horse,  and  he  beckoned  with  his 
arm  (hand),  "  don't  shoot !  don't  shoot!  for  God's 
sake,  don't  shoot!"  and  advised  Kline  that  it 
would  be  dangerous  to  attempt  making  arrests, 
and  that  they  had  better  leave.  Kline  said  he 
would  hold  us  accountable  for  the  slaves,  what 
slaves,  I  don't  know.  Kline  said  he  would  leave, 
and  he  called  to  his  men  to  come  away.  I  think 
he  called  twice  or  three  times,  I  am  not  certain 
as  to  the  number.  He  made  a  motion  as  though 
he  was  moving  off,  and  I  cast  my  eye  clown  the 
lane,  and  I  saw  other  men  down  towards  the 
house,  moving  as  though  they  were  coming.  I 
started  and  went  out  at  the  end  of  the  lane,  where 
Castner  Hanway  came  in,  and  passed  down  the 
field.  Castner  passed  down  the  way  I  came  in, 
down  towards  the  long  creek.  As  I  passed  along 
the  lane,  I  saw  Kline  following. 

Question.    You  turned  up  towards  the  wood  ? 

Answer.  I  turned  up  towards  the  woods. 
Castner  Hanway  went  north. 

Mr.  Stevens.    Ycm  cast  your  eye  back  ? 

Witness.    Kline  was  following  up  the  lane. 

Judge  Kane.  You  saw  Castner  Hanway  going 
the  other  way  ? 

Answer.  Yes,  sir — going  the  other  way,  and 
Kline  following  the  way  I  was.  Whether  there 
was  another  person  with  him  or  not,  I  could  not 
tell,  but  he  crossed  the  road,  and  up  into  the 
woods,  and  I  passed  on  along  the  road  westward, 
and  had  got  alongside  of  the  corn-field,  and 
there  was  a  shouting,  with  the  colored  people  I 
suppose,  and  presently  I  saw  over  the  corn,  a 
smoke  raising  near  the  house  from  the  shots 
fired.  At  this  time  Kline  was  up  in  the  woods, 
and  presently  after  he  called  to  me  to  come  back, 
that  there  was  a  man  shot.  I  passed  on,  and  he 
followed  along  that  same  road.  I  went  some  two 
or  three  hundred  yards,  perhaps  more — I  went 
on  and  lost  sight  of  him,  and  didn't  see  him  af- 
terwards. After  the  firing  at  the  house — from 
my  position  I  could  see  along  the  long  lane  over 
the  creek — I  could  see  or  hear  shooting  and  hal- 
ooing,  and  could  see  the  smoke  for  some  time. 

Mr.  Stevens.  From  the  time  that  Castner 
Hanway  rode  into  the  mouth  of  the  short  lane, 
until  he  went  away,  did  he  ride  across  to  the  other 
side  of  the  lane  where  the  negroes  were,  to  speak 
to  them  ? 

Answer.    He  did  not. 

Question.  While  you  were  there,  was  Mr. 
Hanway  speaking  to  the  Marshal.  Bid  he,  or 
did  he  not  say  that  he  cared  nothing  about  the 
Act  of  Congress  or  any  other  law? 


UNITED  STATES  V.  HANWAY. 


121 


Answer.    He  did  not,  that  I  heard  him. 
Question.    Did  you  say  that  ? 
Answer.    I  did  not. 

Question.    When  the  firing  commenced,  Kline 
Was  in  the  woods  ? 
Answer.    He  was. 

Question.  From  the  time  that  you  left,  and 
he  followed  you,  did  he  get  oyer  into  the  corn- 
field? 

Answer.  He  did  not :  if  he  did  he  did  it  very 
quick,  indeed,  and  back  into  the  road. 

Question.  From  the  time  he  went  into  the 
woods  until  he  followed  you  down  towards  your 
house — that  is,  on  the  road  towards  your  house 
that  you  went — did  he  go  hack,  down  towards  the 
mouth  of  the  short  lane  ? 

Answer.  He  did  not;  if  he  did,  he  did  it 
very  quickly. 

Mr  Stevens.  You  can  tell  whether  he  went 
from  the  woods  down  to  the  mouth  of  the  short 
lane? 

Answer.    He  did  not. 

Mr.  Stevens.  You  spoke  of  having  stopped, 
after  you  had  got  a  portion  of  the  distance  along 
the  road  that  leads  west  of  your  house,  and  saw 
Kline  coming  in  the  woods — did  you  stand  in  the 
road  behind  the  corn-field  ? 

Answer.  I  got  on  the  fence  alongside  of  the 
road. 

Question.  Before  you  saw  Mr.  Hanway,  and 
told  him  there  were  kidnappers  about  to  seize 
Parker,  that  morning,  had  he,  as  far  as  you  know, 
any  intimation,  or  had  he  formed  any  intention 
with  regard  to  this  transaction  at  the  house  ? 

Mr.  Cooper.  I  don't  think  that  is  a  proper 
question. 

Mr.  Stevens.  I  have  no  objection  to  omit  the 
question. 

Judge  Grier.  Hanway  might  have  addressed 
him  and  said,  "Come  on,"  and  he  might  have 
been  ready  before  he  got  there,  therefore,  the 
question  is  not  improper. 

Mr.  Stevens.  I  have  no  desire  to  ask  it,  if 
the  gentlemen  object. 

Question.  In  what  condition  was  Mr.  Han- 
way when  he  came  out  of  the  house,  in  regard  to 
being  prepared  to  go  ? 

Answer.  He  had  no  coat  on,  and  I  think  he 
had  no  hat  on  as  I  first  saw  him. 

Question.    Any  weapons? 

Answer.    No  weapons  of  any  kind. 

Question.  Something  has  been  said  in  the 
previous  testimony  about  you  and  Mr.  Hanway's 
being  arrested,  state  whether  you  were  arrested, 
or  gave  yourselves  up  ? 

Answer.  We  were  not  arrested,  we  gave  our- 
selves up. 

Question.    Where  did  you  go  to  do  that? 

Answer.    To  Christiana. 

Cross-examined  by  Mr.  Cooper. 

Question.  About  what  time  in  the  morning 
did  you  state  it  was,  before  sun-up  ? 

Answer.  It  was  before  sun-rise,  I  can't  say 
exactly,  as  to  the  time. 

Question.  Did'nt  you  *now  the  warrants 
were  out  for  you,  before  you  went  to  give  your- 
selves up  ? 

Answer.    I  didn't  know  there  was  a  warrant 


out,  I  was  informed  they  were  preparing  a  war- 
rant. 

Where  were  you  then  ? 
At  my  home. 

Who  told  you  ? 
George  Whit  son. 

A  white  man  ? 
Yes. 

About  what  time  was  it  in  the 
to  the  ground — to  Par- 


you 


16 


Question. 
Answer. 
Question. 
Answer. 
Question. 
Answer. 
Question. 
morning,  that  you  got 
ker's  house  ? 

Answer.    After  sun-rise. 
Question.    Was  there  any  firing  befsr^ 
left  the  ground  ? 

Answer.    There  was  not. 
Question.    Why  did  you  leave  ? 
Answer.    Our  object  being  accomplished — to 
ascertain  that  there  was  authority  there,  we  had 
no  further  business. 

Question.  Did  you  know  any  of  the  persons 
on  the  ground,  besides  Hanway  ? 

Answer.  I  knew  some  two  or  three  of  the 
colored  persons. 

Question.  Did  you  see  them  with  arms  in 
their  hands  ? 

Answer.  There  was  some  that  had  arms  in 
their  hands — some  had  none. 

Question.  Whereabouts  did  you  state  that 
you  were  at  the  time  that  you  saw  the  smoke 
from  the  guns  ? 

Answer.  Alongside  of  one  of  the  corn-fields, 
west. 

Question. 
Answer. 
yards. 
Question. 
Answer. 
Question. 
came  ? 
Answer. 
Question. 
different  directions  ? 
Answer.    We  did. 

Question,  Where  were  you  at  the  time  you 
were  informed  that  a  man  was  shot  ? 

Answer.  I  was  on  the  road  alongside  of  the 
corn-field,  when  Kline  called  to  me. 

Question.    How  far,  then,  from  the  house  ? 

Answer.    I  can't  state  precisely. 

Question.    About  how  far  ? 

Answer.-  Somewhere  in  the  neighborhood  of 
six  hundred  yards,  I  hadn't  moved  far. 

Question.    That  was  after  the  firing  ? 

Answer.  Yes. 

Question.  Why  didn't  you  go  back  at  the 
time  and  assist  ? 

Answer.  It  is  a  hard  question  to  answer — I 
felt  repugnant  to  going  there. 

Question.  At  the  time  the  person  was  shot, 
were  you  alarmed  for  your  own  safety  ? 

Answer.    I  was. 

Question.  Were  you  alarmed  at  the  time  you 
left  the  ground  ? 

Answer.  Yes. 

Question.    Greatly  alarmed  ? 

ANSwer.    Quite  alarmed. 

Mr.  Geo.  L.  Ashmead.  Do  you  know  a  co- 
lored man  named  Harvey  Scott  t 


How  far  was  that  from  the  house  ? 
I  suppose  about  five  or  six  hundred 

In  the  direction  of  the  creek  ? 
It  was. 


You  didn't  go  back  the  way 


-on 


No. 


Did  you  and  Hanway  retire  in 


122 


TREASON  CASES. 


Answer.  I  only  know  him  from  seeing  liim 
since  this  transaction. 

Question.  Did  you  ever  see  him  before  this 
transaction  ? 

Answer.  Not  to  my  knowledge,  I  may  have 
seen  him. 

Question.  Did  you  see  him  on  the  ground 
that  day  ? 

Answer.    I  did  not. 

Question.    Do  you  know  a  colored  man  named 
John  Morgan  ? 
Answer.    I  do. 

Question.  Did  you  see  him  on  the  ground, 
there  ? 

Answer.    I  did  not. 

Mr.  Stevens.  These  are  the  very  questions 
we  wanted  to  ask  their  witness.  I  have  no  ob- 
jection to  them,  but  it  is  opening  a  number  of 
issues,  as  your  honor  suggested. 

Mr.  Cooper.  I  think  this  is  competent  as 
cross-examination,  to  test  the  witness'  accuracy 
of  recollection. 

Mr.  Geo.  L.  Ashmead.  He  has  said  he  saw  a 
number  of  negroes  whom  he  knew. 

Question.  Did  you  see  Henry  Simmons 
there  ? 

Answer.  '"  I  did  not.  Some  time  after,  I  went 
home  and  got  my  breakfast,  and  returned  to  the 
ground  about  ten  o'clock,  and  saw  Henry  Sim- 
mons there,  then. 

Question.  Who  were  the  colored  persons 
that  you  saw  there,  whom  you  knew. 

Answer.  There  was  one  William  Howard, 
who  was  there ;  another,  who  called  himself 
James  Dorsey. 

Question.    Was  there  any  other. 

Answer.  I  saw  Ezekiel  Thompson.  He  came 
down  the  lane  after  Castner  Hanway.  He  had 
nothing  in  his  hands  that  I  saw. 

Question.  Did  you  see  where  Ezekiel  Thomp- 
son went  to  ? 

Answer.  I  saw  him  at  George  Irwin's  after- 
wards. I  didn't  see  him  after  I  saw  him  first, 
after  Mr.  Hanway  on  the  ground. 

Question.  Did  you  see  any  other  colored  per- 
sons there  you  knew  ? 

Answer.  I  don't  recollect  the  names  of  any. 

Question.  You  saw  these  persons  you  have 
named,  there  on  the  first  occasion  that  morning  ? 

Answer.  I  did. 

Question.  How  long  before  you,  did  Mr.  Han- 
way reach  the  bars  ? 

Answer.  About  a  minute,  perhaps — a  very 
short  time. 

Question.  Did  you  hear  any  conversation  that 
took  place  between  Mr.  Hanway  and  Mr.  Kline 
before  you  came  up  ? 

Answer.  I  didn't — except  the  exclamation  by 
Kline,  I  am  the  Marshal  of  the  United  States  ! 

Question.  Did  you  hear  any  between  him  and 
Dr.  Pierce  at  any  time  ? 

Answer.  I  did  not. 

Question.  Had  you  seen  the  Marshal,  before 
you  came  up,  hand  any  papers  to  Hanway? 
Answer.  I  did  not. 

Question.  Do  you  mean  to  say  he  did  not,  or 
that  you  did  not  see  him  ? 
Answer.  Mr.  Hanway  was  in  sight — it  was 


on  the  lane,  and  if  he  had  handed  them,  I  could 
have  seen  them. 

Question.  Did  you  see  the  papers  in  Han- 
way's  hands  at  all  ? 

Answer.  When  he  handed  the  paper  to  me,  I 
handed  it  over  to  Mr.  Hanway 

Question.  Did  Hanway  read  the  papers? 

Answer.  He  looked  at  them. 

Question.  You  have  stated  that  Kline  was  in 
the  woods,  and  that  you  passed  him  ? 

Mr.  Stevens.  No,  sir,  he  didn't  say  that. 

Question.  Didn't  you  say  that  when  you  went 
down  the  long  lane  you  passed  Kline  in  the 
woods  ? 

Answer.  I  did  not. 

Question.  You  have  said,  then,  that  Kline 
called  to  you  a  man  was  shot — how  far  was  he 
when  he  said  that,  from  the  mouth  of  the  short 
lane? 

Answer.  I  suppose  a  hundred  or  a  hundred 
and  fifty  yards,  as  near  as  I  can  recollect,  to  the 
best  of  my  judgment. 

Question.  Could  you  see  from  that  place  to 
the  mouth  of  the  short  lane  ? 

Answer.    I  could  not. 

Mr.  John  W.  Ashmead.  Am  I  to  understand 
that  the  statement  you  have  now  made,  embraces 
every  thing  that  you  saw  that  morning  upon  the 
ground — that  is  to  say,  you  have  told  us  all  you 
saw — the  whole  of  it  ? 

Answer.  I  may  state  that  I  saw  men  in  the 
lane  near  the  house. 

Question.    You  have  told  us  all  you  saw  ? 

Answer.    I  think  so,  as  I  recollect  them. 

Mr.  Brent.  Did  you  hear  any  thing  the  even- 
ing before,  about  kidnappers  going  to  come  up  ? 

Answer.  I  did  not,  I  had  no  intimation  of 
such  a  thing,  till  Isaiah  Clarkson  told  me. 

Question.  When  did  you  see  Scarlett,  before 
that  morning  ? 

Answer.  I  saw  him  just  before  I  started, 
going  towards  the  barn,  he  lived  just  across  the 
road. 

Question.  Before  you  started  to  Parker's, 
what  was  he  doing  ? 

Answer.    Going  towards  the  barn. 

Question.    What  was  he  going  for  ? 

Answer.    I  don't  know. 

Question.    Did  you  see  him  mount  a  horse  ? 

Answer.    I  did  not. 

Question.    Did  you  see  him  on  a  horse  ? 

Answer  I  met  him  on  the  lane,  between  the 
road  that  crosses  the  Valley  at  the  mill. 

Question.  Between  Hanway's  mill  and  Par- 
ker's house  ? 

Answer.  Yes. 

Question.  Was  he  present  when  Isaiah  Clark- 
son  communicated  this  information  to  you  ? 
Answer.    He  was  not. 

Question.  Did  he  receive'  that  information 
from  you  or  Clarkson,  to  your  knowledge,  that 
morning  ? 

Answer.    Not  from  me. 

Question.  Which  way  did  he  go  when  he  left 
you? 

Answer.    Towards  Dogtown. 

Question.    Had  he  been  to  Scarlett's  house  ? 

Answer.    He  came  across  from  that  side. 


UNITED  STATES  V.  HANWAY. 


123 


Question.    Was  this  before  day  ? 

Answer.  It  was  between  daylight  and  sunrise. 

Question.  The  statement  made  to  you  was 
that  kidnappers  had  broken  into  Parker's  house, 
and  were  going  to  carry  him  away  ? 

Answer.  That  his  house  was  surrounded  by 
kidnappers — they  had  broken  into  the  house  and 
were  going  to  take  him  off. 

Question.   He  wished  you  to  see  justice  done  ? 

Answer.  He  called  upon  me  to  go  and  see 
justice  done. 

Question.  Had  you  promised  him  or  any  one 
before  that,  you  would  see  justice  done  ? 

Answer.    I  had  not,  that  I  know  of. 

Question.    Why  did  he  call  on  you  ? 

Answer.    I  don't  know. 

Question.    Had  he  particular  reasons  for  call- 
ing on  you  to  see  justice  done  ? 
Answer.    None  that  I  know  of. 
Question.    You  hadn't  promised  it  before? 
Answer.  No. 

Question.  You  went  to  Hanway's  house  to 
give  him  the  information — and  you  say  Hanway 
got  there  before  you  ? 

Answer.    A  little. 

Question.  Did  you  see  him  as  he  rode  up  to- 
wards Parker's  house,  through  the  long  lane  ? 

Answer.  I  saw  him  coming  down  the  long 
lane. 

Question.  Did  you  see  him  ride  into  the 
short  lane  ? 

Answer.    I  did  not. 

Question.    Did  he  go  into  the  short  lane  ? 
Answer.    He  did  not. 

Question.    If  he  had  gone  into  it,  you  would 
have  seen  him  ? 
Answer.    I  would. 

Question.  You  didn't  see  him  ride  to  the  bars  ? 
Answer.    I  did  not. 

Question.  If  he  had,  you  would  have  seen 
him  ? 

Answer.    I  would. 

Question.  And  you  didn't  see  the  warrants 
handed  to  Hanway  in  the  first  instance,  but  they 
were  handed  by  you  to  him,  and  if  handed  to 
him  in  the  first  instance,  you  would  have  seen  it 

Answer.    I  would. 

Question.  You  say  it  was  signed  by  Mr.  In- 
graham,  from  which  you  inferred  there  was  au- 
thority;  where  was  Clarkson  then? 

Answer.    I  don't  know. 

Question.    Did  you  see  him  on  the  ground  ? 

Answer.    I  did  not. 

Question.  Did  you  tell  the  negroes  that  there 
was  authority? 

Answer.    I  did  not  speak  to  them. 

Question.  Why  didn't  you  give  them  that  in- 
formation which  you  had  obtained  from  the  pa- 
pers ?    You  went  there  to  see  justice  done  ? 

Answer.  I  went  there  to  see  if  they  had  au- 
thority. 

Question.  You  were  invited  to  go  see  justice 
done.  I  want  to  know  why  you  did  not  inform 
these  men  you  saw  there  about  to  proceed  to  vio- 
lence, that  there  was  authority  ? 

Answer.  I  don't  know  that  I  can  give  any 
reason;  I  felt  myself  in  danger  and  wished  to  get 
away. 


Question.  Didn't  you  consider  the  white  men 
in  danger  when  you  left  there  ? 

Answer.    I  thought  they  were  leaving. 

Question  Had  you  seen  any  leave  except 
Kline? 

Answer.  The  others  made  a  motion  as  though 
they  were  coming. 

Question.  Didn't  you  see  the  old  man  Mr. 
Gorsuch  ? 

Answer.    I  did  not. 

Question.  Did  you  see  him  at  any  time  that 
day? 

Answer.  When  the  inquest  was  held,  I  saw  a 
man  resembling  Mr.  Gorsuch ;  he  was  up  near 
the  house. 

Question.  Were  there  not  several  persons 
between  the  bars  and  the  house  before  you  went 
away  ? 

Answer.    They  were  near  the  house. 

Question.  Didn't  you  consider  them  in  more 
peril  than  yourself  when  you  left  ? 

Answer.  I  don't  know  that  I  took  a  thought 
about  it. 

Question.  You  didn't  say  a  word  to  the  blacks 
about  there  being  authority  for  this  proceeding ; 
you  saw  there  was  authority ;  you  were  satisfied 
and  alarmed  and  ran  away.  Were  you  at  Chris- 
tiana when  the  inquest  was  held  ? 

Answer.    I  was  not. 

Question.  You  came  back  at  ten  o'clock  that 
day  ? 

Answer.  At  the  house  where  the  corpse 
laid. 

Question.    Where  was  the  dead  body  then  ? 
Answer.    In  the  short  lane. 
Question.    Were  you  there,  when  the  body 
was  carried  to  Christiana  ? 
Answer.    I  was  not. 
Question.    You  went  away  before  that? 
Answer.    I  did. 

Question.  Did  you  see  Squire  Pownell  there 
that  day  ? 

Answer.  I  saw  him  at  Parker's  house  that 
day.    He  summoned  the  jury  of  inquest. 

Question.  Did  you  inform  him,  or  any  of  the 
jury,  that  you  had  been  an  eye-witness  of  this 
transaction  ? 

Answer.  I  didn't.  I  told  them  what  I  had 
seen  at  the  distance. 

Question.    You  were  not  sworn  by  that  jury  ? 

Answer.    No,  sir. 

Question.  You  told  them,  the  same  that  you 
told  here  to-day  ? 

Answer.  I  can't  recollect  that  I  told  them 
anything  in  particular. 

Question.  You  didn't' tell  any  thing  contrary 
to  what  you  told  us  ? 

Answer.  No. 

Question.    And  you  were  not  sworn  ? 
Answer.  No. 

Judge  Grier.    Was  anybody  sworn  ? 

Mr.  Brent.  Nobody  was  examined  but  the 
doctor ;  to  say  if  he  was  dead>  and  what  had 
killed  him. 

Question.  Why  did  Hanway  go  up  the  lane 
to  the  north  ? 

Answer.  I  dont  know  ;  his  horse's  head  was 
turned  that  way 


124 


TREASON  CASES. 


Question.  That  was  the  contrary  way  from 
his  home  ? 

Answer.  Yes. 

Question.    Do  you  know  where  he  went  ? 
Answer.    I  do  not. 

Question.  Where  did  you  nest  see  him  that 
day? 

Answer.  I  think  I  met  him,  between  George 
Irwin's  house  and  his  house  ;  I  am  not  c^ear  in 
that  though. 

Question.  Did  you  hear  the  negroes  shout ; 
"  He  is  but  a  deputy  ?" 

Answer.    I  did  m  t. 

Question.    Did  you  see  Kline  leading  Dicker- 
son  Grorsuch,  or  any  wounded  man  ? 
Answer.    I  did  not. 

Question.    You  saw  nothing  of  that  kind  ? 
Answer.  No. 

Question.  You  saw  Kline  in  the  woods  before 
the  firing  began  ? 

Answer.  I  saw  him  walk  up  into  the  woods 
before  the  firing  began. 

Question.    How  far  did  he  follow  you  ? 

Answer.  He  kept  on  the  road.  I  did'nt  go 
the  same  road  he  did.  He  kept  on  the  road 
running  by  the  mill  ? 

Question.  He  did'nt  return  after  you  saw 
him  in  the  woods  ? 

Answer.    He  did  not. 

Question.  He  didn't  lead  any  wounded  man, 
after  you  saw  him  in  the  woods  ? 

Answer.    Not  that  I  saw. 

Question.  Could  he  have  led  a  wounded  man 
after  he  run  up  into  the  woods,  without  your 
seeing  him  ? 

Answer.    I  think  he  could  not. 

Question.  And  you  swear  he  was  in  the 
woods  before  the  firing  began  ? 

Answer.    I  saw  him  go  that  way. 

Question.  And  that  he  could  not  have  led 
the  wounded  man  ? 

Answer.  He  hadn't  time  to  do  that  and 
return  to  the  position  when  I  last  saw  him. 

Question.    Where  did  you  next  see  Scarlett  ? 

Answer.    I  met  him  as  I  was  going. 

Question.    What  condition  was  his  horse  in  ? 

Answer.  I  didn't  take  much  notice  of  the 
horse. 

Question.  Did  Scarlett  tell  you  where  he  had 
.  been? 

Answer.    He  did  not. 

Question.    Did  you  ask  the  question? 

Answer.    I  did  not. 

Question.    Did  you  tell  him  any  thing? 

Answer.    I  don't  know  that  I  did. 

Question.  You  didn't  tell  him  any  thing  about 
this  fight,  but  just  passed  on  the  road? 

Answer.    Yes,  I  just  passed  on. 

Question.    He  lived  opposite  to  you  ? 

Answer.    We  were  neighbors. 

Question.  Didn't  you  know  where  Scarlett 
was  going  before  you  left  home  that  morn- 
ing ? 

Answer.  I  didn't,  I  had  no  knowledge  of 
where  he  was  going. 

Question,  Clarkson  had  crossed  the  road, 
from  his  house  to  yours  ? 

Answer.  Yes. 


Question.  Where  you  in  bed  when  Clarkson 
came  ? 

Answer.    I  was  just  opening  the  store  door. 
Question.    You  kept  a  store,  and  were  a  post- 
master of  the  United  States  ? 
Answer.  Yes. 

Question.  Did  you  sell  any  powder  or  shot 
the  day  before  ? 

Answer.  I  have  no  recollection  of  selling  any. 
I  kept  them. 

Question.    When  do  think  you  last  sold  them  ? 

Answer.    I  don't  know. 

Question.    Have  you  sold  to  colored  persons  ? 
Answer.    I  sell  to  any  who  ask  me. 
Question.    Then  you  have  sold  to  colored  per- 
sons ? 

Answer.    Yes,  to  colored,  and  to  white,  too. 

Mr.  Cooper.  Which  way  did  Hanway  leave 
the  ground — along  the  long  lane,  in  the  direction 
of  the  creek  ? 

Answer.  Yes. 

Question.    Did  you  see  him  until  he  had 
reached  the  creek  ? 
Answer.  No. 

Question.  How  far  was  he  towards  the  creek 
when  you  last  saw  him  ? 

Answer.  I  can't  say ;  my  attention  was  not 
on  him. 

Question.    You  saw  no  other  white  person  in 
company  with  him,  or  about  him  ? 
Answer.  No. 

Mr.  Brent.  When  Hanway  said  to  Kline  he 
would  have  nothing  to  do  with  it,  was  not  that  in 
reply  to  Kline's  request  to  assist  him? 

Answer.    It  was. 

Question.  When  he  requested  him  to  assist 
him,  his  reply  was,  he  would  have  nothing  to  do 
with  it  ? 

Answer.  Yes. 

Question.  You  didn't  hear  him  say  any  thing 
else? 

Answer.   Not  that  I  recollect. 
Re-examined  by  Mr.  Lewis. 

(Witness  is  shown  the  plan,  and  questioned 
upon  it.) 

Judge  Kane.  Mr.  Lewis,  we  cannot  hear 
what  you  said. 

Mr.  Lewis.  I  wanted  to  know  in  what  direct- 
ion he  crossed  into  the  woods.  He  said  he  cross- 
ed directly  there,  (pointing)  When  his  attention 
was  next  turned  toward  him,  he  said  he  was 
along  here ;  (pointing)  and  he  saw  him  in  the 
woods  in  the  direction  of  the  road  and  he  came 
into  it. 

Cross-examined  by  Mr.  Brent. 

Question.  You  went  back  there  at  ten 
o'clock  and  saw  a  dead  body.  You  had  seen 
the  firing  ? 

Answer.    I  saw  the  smoke. 

Question.  Did  you  not  believe  the  man  was 
killed  by  the  party  you  had  seen  there  early  in 
the  morning  ? 

Answer.    I  supposed  so 

Question.  You  knew  some  of  the  parties 
there,  did  you  ever  give  information  to  any  per- 
son to  have  these  parties  arrested  and  held  to  an 
examination  for  the  death  of  that  man  ? 

Answer.  No. 


UNITED  STATES  V.  H  AX  WAY. 


125 


Question.    Squire  Pownall  was  known  by  you 
to  be  a  justice  of  the  peace  ? 
Answer.  Yes. 

Question.    You  saw  him  on  the  ground  in  the 
presence  of  the  dead  body  ? 
Answer.  Yes. 

Question.  Did  you  name  to  him  which  of  the 
colored  men  you  had  seen  there  in  the  morning, 
and  whom  you  could  identify,  and  demand  that 
they  should  be  arrested  ? 

Answer.    I  did  not. 

Question.  State  why  you  did  not,  when  you 
had  been  an  eye-witness  to  the  principal  part  of 
the  transaction  ? 

Answer.  I  dont  know  that  I  can  give  any 
reasons. 

Henry  Birt  being  conscientiously  scrupulous 
of  taking  an  oath  is  affirmed. 

Examined  by  Mr.  Stevens. 

Question.  Where  did  you  live  at  the  time  this 
murder  took  place  at  Parker's? 

Answer.    I  lived  with  Castner  Hanway. 

Question.  Will  you  state  how  Castner  Han- 
way came  to  go  down  to  that  house,  and  what 
you  know  about  it  ? 

Answer.  On  the  morning  of  the  affray,  Elijah 
Lewis  came  along  the  road  where  I  was  just 
crossing  the  road  at  the  time,  and  he  asked 
me  if  Castner  was  in,  and  I  told  him  he  was, 
and  I  asked  if  he  wanted  to  see  him,  and  he  said 
"  tell  him  that  William  Parker's  house  was  sur- 
rounded by  kidnappers,  who  were  going  to  take 
him,"  or  words  to  that  effect.  I  turned  to  go 
into  the  house,  and  Castner  came  out,  and  I  told 
him  what  Elijah  had  told  me.  Elijah  was  going 
on  down  the  road  at  that  time,  and  Castner 
asked  him  what  was  the  matter,  and  he  told  him 
the  same  thing.  He  spoke  of  having  the  horse, 
and  I  asked  him  if  he  wished  to  have  him,  and 
he  said  yes,  and  I  got  him  and  saddled  him,  and 
in  the  meanwhile  he  sat  down  and  ate  his  break- 
fast, and  then  gets  on  the  horse  and  started 
down  the  road  towards  Parker's,  and  I  saw 
nothing  more  of  him  from  that  time  till  some- 
time in  the  forenoon. 

Question.  Did  you  see  a  man  they  called 
Kline  that  morning  come  past  your  mill? 

Answer.    Yes,  sir. 

Question.  He  has  said  he  had  no  conversa- 
tion at  the  mill;  state  whether  he  had. 

Answer.    Yes,  he  had  with  Squire  Pownell, 
Thompson  Loughead  and  I.    He  came  along  by 
the  mill,  and  stopped  when  he  was  opposite  the 
mill.    First,  I  believe  he  inquired  the  way  to 
Penningtonville,  and  Thompson  Loughead  di- 
rected him  on  the  way.    He  came  over  there ; 
he  was  a  little  hard  of  hearing ;  he  came  over 
to  the  mill  to  hear  what  we  had  to  say.  and  we 
told  him  the  way,  and  he  said  there  were  two 
men  laying  over   there   at  the   house,  badly 
i  wounded,  and  particularly  a  young  man  laying 
mp  in  the  woods,  that  he  thought  would  die; 
land  he  wanted  to  get  a  conveyance  to  take  them 
jto  the  railroad.    Thompson  asked  the  reason 
why  they  stayed  so  long  until  these  men  were 
wounded.    Kline  remarked,  that  he  wanted  to 
withdraw,  but  they  would  not  mind  him.  That 
le  told  them  it  was  impossible  to  do  any  thing 


with  the  darkies  they  were  after,  there  were  too 
many  against  them ;  that  he  wanted  them  to 
eome  away,  but  they  would  not  mind  him,  and 
he  came  away  and  left  them. 

Cross-examined  by  Mr.  Cooper. 

Question.  What  time  in  the  morning  was  it 
when  he  came  to  the  mill  ? 

Answer.  I  suppose  it  may  have  been  perhaps 
eight  o'clock. 

Question.   What  sized  man  is  Mr.  Loughead  ? 

Answer.  He  is  not  very  tall,  but  stoutly 
built ;  he  is  not  quite  as  tall  as  I  am,  I  think ; 
he  is  a  middle  aged  man. 

Question.  How  far  was  it  from  the  mill  when 
Kline  met  Squire  Pownell  ? 

Answer.  Squire  Pownell  came  up  to  the  mill 
while  we  were  talking  to  him. 

Question.    How  far  was  it  from  the  mill  ? 

Answer.  He  had  not  moved  from  the  time  he 
came  up  close  to  the  mill. 

Jacob  Whitson,  being  conscientiously  scrupu- 
lous of  swearing,  is  affirmed. 

Examined  by  Mr.  Stevens. 

Question.  Shortly  after  this  affair  at  Parker's, 
had  you  any  conversation  with  Kline,  about 
whether  he  knew  who  shot  old  Mr.  Gorsuch,  and 
what  did  he  tell  you  ? 

Answer.  On  the  first  day  of  the  week  follow- 
ing the  riot,  Kline  and  some  seven  or  eight 
others  came  to  my  father's  house,  and  asked  if 
Parker  was  there  ;  I  told  him  he  was  not,  and 
he  said  that  he  had  been  informed  that  he  was 
seen  coining  there,  and  I  told  him  that  the  per- 
sons who  had  informed  hhn  knew  more  about  it 
than  I  did,  but  if  he  had  legal  authority,  he 
could  search.  He  said  they  were  in  pursuit  of 
him,  and  there  was  ten  thousand  dollars  reward 
offered  for  him  ;  five  thousand  by  Governor  John- 
ston, and  five  thousand  by  the  Governor  of  Mary- 
land ;  and  they  were  bound  to  have  him,  for  he 
was  the  man  that  shot  Mr.  Gorsuch. 

Judge  Grier.  Is  this  in  contradiction  of 
any  thing  sworn  by  Kline  ? 

Mr.  Stevens.  Yes,  sir  ;  I  asked  Kline  if  he 
didn't  tell  Mr.  Whitson  that  Parker  shot  Air. 
Gorsuch  :  and  I  asked  him  the  question  in  an- 
other shape. — if  he  didn't  tell  him  he  saw  him 
shoot  Mr.  Gorsuch,  and  he  denied  it,  and  said  he 
had  no  conversation  with  anybody  at  the  house 
in  reference  to  Parker. 

Mr.  Geo.  L.  Ashmead.  I  have  no  recollection 
of  such  a  question. 

Mr.  Brent.  He  said  he  didn't  know  Jacob 
Whitson. 

Mr.  Stevens.  And  I  asked  him  further,  if  he 
didn't  go  to  a  certain  house  on  Sunday  in  senrch 
of  Parker — he  said  he  did  go  there,  but  had  no 
conversation  with  anybody  about  it. 

Mr.  Geo.  L.  Ashmead.  I  don't  recollect  such 
a  question  being  put  to  Kline. 

Mr.  Stevens.  Here  it  is  on  page  119,  "Have 
you  told  any  person,"  &c,  (reads  from  notes.) 

Mr.  Geo.  L.  Ashmead.  Sot  a  word  was  said 
about  the  reward. 

Mr.  Stevens.  We  don't  ask  about  the  reward. 

Judge  Grier.  It  is  part  of  the  transaction — if 
he  states  a  conversation,  he  must  state  the  whole 
of  it. 


126 


TREASON  CASES. 


Witness.  He  said  that  lie  was  the  man  that 
shot  Mr.  Gorsuch.  He  said  perhaps  they  would 
not  get  him  to-day,  may-be  not  for  several  days, 
but  if  he  went  to  Canada  he  would  get  him  from 
there — he  would  bring  him  out  of  Canada.  And 
my  sister  said,  would  you  kuow  Parker,  and  he 
said  he  would — that  he  was  talking  to  him  from 
the  window  twenty  minutes  before  the  firing 
commenced. 

Question.  Did  he  say  how  he  knew  that  Parker 
shot  him  ? 

Answer.  He  just  said  he  saw  him  shoot  him. 
No  Cross-examination. 

The  Court  adjourned  till  Wednesday,  Dec.  3d, 
1851,  at  10,  A.  M. 

Wednesday,  December  3,  1851. 

COURT  OPENED  AT  10  O'CLOCK,   A.  M. 

PRESENT,  JUDGES  GRIER  AND  KANE. 

Mr.  R.  M.  Lee.  Having  been  placed  by  the  re- 
marks of  counsel  yesterday,  in  a  false  position,  I 
beg  leave  to  define  my  position  in  this  honorable 
Court.  If  I  had  the  desire  for  recrimination,  I 
owe  it  to  the  official  position  I  hold  in  the  City 
of  Philadelphia,  to  which  reference  was  made  by 
the  learned  gentleman,  whether  with,  or  with- 
out reason,  to  ask  this  Court  to  permit  me  to  let 
the  public  and  your  honors  understand  the  posi- 
tion I  occupy  here.  I  was  the  original  counsel 
of  the  late  Edward  Gorsuch,  Esq.,  on  his  arrival 
in  the  City  of  Philadelphia.  If  he  had  arrested  his 
fugitives,  I  should  have  appeared  before  your 
honors,  or  the  Commissioner,  as  counsel.  I  had  his 
papers  in  my  hands.  The  neighbors  and  friends  of 
Mr.  Gorsuch  in  Maryland,  united  in  repeated  re- 
quests, to  solicit  the  aid  of  one  so  humble  as  I  must 
ever  be  in  this  or  any  other  cause.  I  hesitated. 
The  Rev.  Mr.  Gorsuch,  on  my  coming  into  Court, 
the  son  of  the  murdered  citizen  of  Maryland, 
pressed  me,  having  been  the  counsel  of  his  father, 
to  unite  my  humble  efforts  in  the  cause.  I 
yielded  to  the  solicitations  of  those  gentlemen, 
and  was  retained  by  the  neighbors  and  friends 
of  Mr.  Gorsuch,  in  Baltimore.  I  waited  upon 
the  District  Attorney  and  had  a  full  understand- 
ing with  him,  and  came  into  this  cause  not  only 
with  his  approbation  and  consent,  but  after  he 
had  expressed  his  gratification  of  the  fact.  The 
duties  of  counsel  having  been  disposed  of  in  the 
cause,  I  was  quite  satisfied  to  occupy  any  po- 
sition here,  that  might  be  marked  out  for  me  ; 
therefore,  it*  was  my  duty  mainly  to  attend  to 
the  examination  of  the  jury  throughout  the  State 
who  had  been  summoned  here.  This  will  satisfy 
this  Court  and  the  public  of  the  position  I  occu- 
py, and  that  must  suffice  between  the  learned 
gentleman  and  myself,  before  this  Court. 

Mr.  Cuyler.  May  it  please  the  Court,  I  beg 
leave  to  state,  that  it  was  farthest  from  my  de- 
sire, to  do  any  injustice  to  Col.  Lee,  or  to  the 
other  gentlemen  representing  the  State  of  Mary- 
land, for  whom  I  need  not  say,  I  have  all  due  per- 
sonal respect.  I  spoke  in  a  great  measure  extem- 
poraneously, and  having  since  been  informed  that 
the  gentleman  does  not  occupy  the  position  of  a 
volunteer,  I  very  willingly  withdraw  the  remarks. 

Thos.  Lawhead  is  called  and  sworn. 


Mr.  Stevens.  Inform  the  Court  and  Jury 
whether,  on  the  morning  this  affair  took  place  at 
Parker's,  and  where  you  met  Elijah  Lewis,  and 
what  you  heard  Kline  say  after  that. 

Answer.  I  had  to  go  over  that  way  that 
morning  and  heard  the  row.  I  started  from  the 
brick  mill  across  through  a  clover  field  and  out 
of  the  road,  round  the  field,  and  I  took  a  near 
cut  to  save  going  round  the  road. 

Question.    You  mean  the  road  by  the  woods  ? 

Answer.  I  was  within  fifteen  or  twenty  yards 
of  the  road,  when  I  was  in  the  clover  field.  I 
heard  the  report  of  a  great  many  guns,  which 
went  off  in  rapid  succession  one  after  another. 
I  passed  into  the  road  and  went  some  two  hun- 
dred and  fifty  yards,  there  I  met  Elijah  Lewis. 
He  says,  "  you  had  better  turn  back."  I  stepped 
up  three  hundred  steps,  and  I  see  one  man  on 
the  side  of  the  road  and  the  other  out  in  the 
middle  of  the  road.  One  come  and  catched  the 
other,  and  laid  him  down  along  side  of  the  edge 
of  the  woods.  He  appeared  to  leave  the  man 
directly.  He  stops,  hallbos  and  says,  halloo ! 
stop ! 

Mr.  Stevens.    Who  was  that  ? 

Answer.  I  do  not  know  who  it  was.  He  fol- 
lowed along  down  the  road.  Just  at  that  time,  I 
saw  heads  of  men  down  near  the  creek,  I  turned 
round  and  come  on  with  Lewis,  at  the  place 
where  I  crossed  in  the  clover  field.  I  takes 
across  the  clover  field.  Lewis,  he  passes  along 
around  ;  just  at  that  place  Joseph  Scarlet  came 
riding  on  horseback.  I  passes  on  to  the  mill 
and  sits  down  with  Henry  Burk,  and  in  the 
course  of  two  or  three  minutes,  the  marshal 
came  up,  he  asked  the  road  to  Peaningtonville,  I 
directed  him  to  the  road.  He  says,  "there  is 
two  men  wounded,  one  up  to  the  edge  of  the 
woods  and  the  other  down  in  the  lane,  and  he 
didn't  think  the  one  by  the  woods  would  ever  get 
over  it.  He  asked  something  about  a  doctor. 
We  told  him  there  was  a  doctor  at  Christiana  and 
one  at  Penningtonville. 

Says  I,  you  had  better  left  before  so  many 
darkies  gathered.  Says  he,  I  told  them  so. 
Says  he,  I  called  them  away  and  I  left  myself, 
and  tiiey  wouldn't  follow  me.  He  complained  of 
being  tired.  Says  he,  I  came  up  from  Philadel- 
phia by  the  night  line,  and  walked  across,  and 
pointed  at  his  legs,  they  were  all  drabbled  with 
wet  and  dew.  At  that,  Squire  Pownell  rode  up, 
and  Henry  Burk  says,  that  is  the  squire,  may  be  he 
can  do  something  for  you.  He  told  him  there 
was  a  couple  of  men  wounded. 

Mr.  Cooper.    You  need  not  tell  that,  sir. 

Witness.  That  is  pretty  much  what  I  know. 
He  left  directly  after  that. 

Mr.  Cooper.  What  time  in  the  morning  was 
it  you  first  got  near  Parker's  house  ? 

Answer.    I  think  it  was  near  half  after  six. 

Question.    How  high  was  the  sun  ? 

Answer.    The  sun  was  near  an  hour  high. 

Mr.  Brent.  You  said  that  he  said,  one  was 
wounded  in  the  lane  and  the  other  in  the  woods. 
Did  he  say  both  were  in  the  woods  ? 

Answer.    No,  sir. 

Question.  It  was  the  conversation  Henry 
Birt  heard? 


UNITED  STATES  V.  HANWAY. 


127 


Answer.    Yes,  sir. 

Question.  Esquire  Pownell  came  up  to  the 
mill,  Kline  said  he  was  much  fatigued,  and  that 
he  had  come  up  in  the  night  line  from  Phila- 
delphia ? 

Answer.    Yes,  sir. 

Question.  Did  he  say  he  had  come  up  in  the 
night  from  Philadelphia,  or  the  line  which  came 
from  Philadelphia  ? 

Answer.  No.  He  said  he  came  from  Phila- 
delphia in  the  night. 

Question.  He  could  not  have  said  the  other. 
You  could  not  have  been  mistaken  about  it? 

Answer.    No,  sir. 

Question.  He  had  came  from  Philadelphia 
in  the  night  line,  that  is  what  you  said  ? 

Answer.  That  is  what  I  understood  him.  He 
came  up  in  the  night  line. 

Question.  He  came  up  from  Philadelphia  in 
the  night  line,  and  walked  over  to  Pennington- 
ville  ? 

Answer.    Yes,  sir. 

Question.  When  you  first  saw  him  he  was 
with  another  ? 

Answer.  They  appeared  to  be  about  six  feet 
apart.  One  came  and  catched  the  other  by  the 
arm  and  held  him  up. 

Question.    Was  it  the  Marshal? 

Answer.  I  took  him  to  be  of  the  same  ap- 
pearance as  he  that  came  to  the  mill. 

Question.    Where  was  that  ? 

Answer.  It  was  just  at  the  edge  of  the 
woods. 

Question.    Where  did  he  lead  him  to  ? 

Answer.  Up  near  the  road  to  the  edge  of  the 
woods,  up  near  a  tree,  and  he  laid  him  down. 

Question.  Did  you  see  any  other  white  men? 

Answer.    I  didn't  see  any  other. 

Question.  Lewis  was  in  sight  then,  was  he? 
How  far  off  was  he  from  that  place  where  this 
wounded  man  was  laid  doAvn  ? 

Answer.    Some  three  hundred  steps. 

Question.    Did  he  walk  fast  ? 

Answer.  Not  fast.  A  slow  walk.  The  road 
makes  a  curve,  and  I  came  up  round  the  circle 
and  met  him. 

Question.  Could  you  see  up  towards  the 
creek  ? 

Answer.  No,  I  could'nt  see  that  way.  There 
was  a  corn  field  and  clover  field  between  me. 

Question.  You  didn't  see  a  man  on  horse- 
back? 

Answer.    None  but  Scarlet. 

Question.  You  say  you  could  not  see  up  to- 
wards the  creek,  so,  if  a  man  had  been  up  there 
on  horseback  I  could  not  have  seen  him  ? 

Answer.    No,  sir,  I  could  not  have  seen  him. 

Samuel  H.  Loughlin,  is  called  and  affirmed. 

Mr.  Stevens.  Be  so  good  as  to  inform  the 
Court  and  Jury,  whether  you  had  any  conver- 
sation with  Kline  after  the  affair  at  Parker's 
house,  and  what  it  was  ? 

Answer.  I  went  up  to  Christiana  on  Friday, 
next  day  after  the  riot,  I  saw  Mr.  Kline,  I  got 
into  conversation  with  him  with  regard  to  the 
affair  He  told  me  the  story  over  as  I  supposed 
then  was  correct.  He  said  that  he  went  up  to 
the  ground,  I  took  it.    I  cannot  give  his  exact 


words  in  every  respect.  I  took  it  he  was  there 
before  daylight,  because  he  said  that  as  soon  as 
it  was  light,  he  saw  a  negro  come  into  the  lane 
and  he  was  recognized  as  one  of  Gorsuch's 
slaves,  and  he  ran  after  him,  and  he  said  the 
negro  went  into  the  house,  and  he  said  then  that 
they  went  in  and  called  to  the  negroes,  and  they 
recognized  their  voices,  two  of  them  as  being  the 
property  of  Mr.  Gorsuch.  He  said  that  they 
became  willing  to  go  with  them,  and  wanted  to 
wait  a  little  while.  He  said  he  gave  them  fifteen 
minutes  then,  and  about  that  time  he  said  they 
threw  something  out  of  the  window  upon  them. 

Mr  Stevens.  We  want  you  to  come  to  the 
time  of  the  war,  and  where  he  was,  and  what  you 
heard  Kline  say? 

Judge  Grier.    Tell  the  whole  story? 

Witness.  He  said  that  the  blacks  by  that 
time  had  gathered  in  the  lane,  and  he  said  they 
appeared  to  have  weapons,  and  he  said  that  he 
seen  that  there  was  going  to  be  a  fight,  and  that 
it  would  be  hard  to  get  these  men  out  of  the 
house.  He  called  his  men  away  and  they  would 
not  come.  He  said  if  they  had  went,  they  would 
not  have  got  hurt.  He  said  he  went  into  the 
woods  and  heard  a  gun  go  off,  and  he  said  after 
the  firing  he  said  a  man  came  running  down  by 
where  he  was,  as  crazy  as  a  bedbug.  I  being  on 
the  ground  the  morning  after  the  affray,  I  asked 
him  particular  questions  with  regard  to  certain 
points,  and  he  said  he  went  after  the  negroes, 
and  went  up  to  the  door.  He  used  the  phrase, 
he  broke  it  in  or  burst  it,  which,  I  cannot  say. 
However  he  got  open  the  door,  and  he  was  the 
first  man  that  went  into  the  house.  He  said  that 
Mr.  Gorsuch  went  in  with  him. 

Mr.  Stevens.  Did  he  tell  you  where  he  was 
at  the  time  the  firing  commenced  ? 

Answer.  He  told  me  he  went  into  the  woods. 
There  was  no  particular  question  in  regard  to 
the  position  he  was  in.    I  gathered  the  idea — 

Mr.  Brent.  Give  the  words.  Not  what  you 
gathered. 

Answer.    He  said  he  went  into  the  woods. 

Mr.  Brent.  I  understood  you  to  say,  that 
after  the  fight,  Kline  went  into  the  woods. 

Answer.  No,  sir.  I  said  he  went  into  the 
wood?,  after  calling  his  men  away. 

Question.  Didn't  you  say  before,  he  went  into 
the  woods,  after  the  fight  ? 

Answer.  No,  sir.  I  say  he  went  into  the 
woods  when  he  saw  the  negroes  gathered  in  the 
lane.  He  called  his  men  away,  and  they  would 
not  come.  After  the  firing,  he  said  there  was  a 
man  came  running  down,  and  he  was  crazy  as  a 
bed-bug. 

Question.    Did  he  say  anything  about  carry- 
ing the  wounded  man  up  into  the  woods  ?.., 
Answer.    No,  sir. 

Question.  So  far  as  you  understood  him,  he 
told  you  the  only  man  he  met,  was  the  man  that 
was  crazy,  and  he  didn't  mention  any  other  at 
all? 

Answer.    No,  sir. 

Question.  You  state  the  negroes  had  asked 
for  time,  and  they  were  beginning  to  gather  to- 
gether. What  did  he  say  about  Hanway  at  that 
time  \ 


128 


TREASON  CASES. 


Answer.  He  said  that  Mr.  Han-way  was  there 
on  horseback,  and  he  told  the  negroes  to  shoot. 

Question.    Did  he  say  he  rode  among  them  ? 

Answer.  No,  sir.  He  said  he  was  on  horse- 
back, and  told  the  negroes  to  shoot. 

Question.  What  did  he  say  about  reading 
the  warrant  ? 

Answer.  He  said  that  Mr.  Lewis  read  the 
warrant.    He  showed  them  the  warrant. 

Question.  Did  he  say  anything  about  calling 
them  to  assist  ? 

Answer.    He  did. 

Question.    What  did  they  do  ? 

Answer.    They  refused. 

Question.    Did  he  tell  what  they  said. 

Answer.    No,  sir.    I  dont  remember. 

Question.    You  say  you  questioned  him 

Answer.    I  did. 

Question.    What  about  ? 

Answer.  How  he  got  into  trouble  at  the 
time. 

Question.    Anything  else  ? 
Answer.    Nothing  particular. 
Question.    Did  you  feel  any  interest  in  the 
matter  that  induced  you  to  question. 
Answer.    None  at  all. 

Questton.  Where  do  you  reside,  at  Penning- 
tonville  ? 

Answer.    About  two  miles  off. 

Question.  Were  you  at  Christiana  when  the 
coroner's  inquest  was  held  ? 

Answer.    Yes,  sir. 

Question.  Did  you  see  Elijah  Lewis  on  the 
ground  at  the  time  of  the  coroner's  inquest  ? 

Answer.    I  saw  him  on  the  ground  ? 

Question.    Did  you  hear  him  say  anything  ? 

Answer.  No,  not  that  I  know  of,  I  didn't 
shake  hands  with  him,  though  I  knew  him  well. 
I  did  not  shake  hands  with  him. 

Question.  Who  gave  you  the  first  informa- 
tion ? 

Answer.    Mr.  Krider 

Question.  You  are  positive  that  Kline  said  he 
had  called  on  both  Han  way  and  Lewis  for  assist- 
ance ? 

Answer.  He  said  he  had  called  upon  them 
for  assistance. 

Question.    Did  he  say  they  refused  ? 

Answer.    He  said  they  refused. 

Question.  And  Mr.  Hanway  ordered  them  to 
fire  ? 

Answer.    He  told  the  negroes  to  shoot 
Question.     You  say  he  didn't-  describe  his 

riding  his  horse  among  them  ? 

Answer.    He  did  not,  he  said  he  was  on 

horseback. 

Question.  He  complained  of  Lewis  and  Han- 
for  having  excited  the  negroes? 

Answer.  He  didn't  in  any  other  way  than 
that  Hanway  told  them  to  shoot. 

Question.  Did  he  say  that  Lewis  did  any- 
thing ? 

Answer.  Nothing  but  that  he  took  the  paper 
m  his  hand  and  read  the  warrants,  and  refused 
to  take  hold. 

Isaac  Rogers  sworn. 

Mr.  Stevens.    Isaac  is  your  first  name  ? 
Answer.    Yes,  sir. 


Question.  Will  you  go  on  and  tell  us  what 
you  know  of  this  affair  at  Parker's  house,  so  far 
as  you  know  anything  about  it,  and  so  far 
especially  as  Mr.  Hanway  is  concerned.  In  the 
first  place,  how  far  do  you  live  from  the  spot  ? 

Answer.  I  cannot  tell  exactly,  it  may  be 
eight  or  nine  hundred  yards. 

Question.    Up  the  long  lane  ? 

Answer.  Yes,  sir  ;  it  might  be  more  or  less, 
I  cannot  say  about  that. 

Question.  From  Parker's  house.  This  is  a 
map  ;  (showing  the  witness  a  map)  here  is  Park- 
er's house,  and  here  is  the  long  lane ;  is  that 
north  ? 

Answer.  Yes,  sir,  that  is  north  of  Parker's, 
about  half  way  up  the  hill. 

Question.  Go  on  and  tell  what  you  saw  and 
know. 

Answer.  On  Thursday  morning  I  heard  the 
noise  there  was  at  Parker's  house,  sometime  af- 
ter sunrise,  somewhere  about  sunrise,  it  may  be 
a  little  after;  I  heard  a  great  noise  on  Thursday 
morning.  I  ran  down  as  far  as  the  creek;  I 
went  across  and  stood  there  a  few  minutes,  and 
heard  a  great  firing  of  guns,  and  I  turned  and 
went  towards  my  own  home  again  as  hard  -as  I 
could  go.  After  I  had  run  off  from  the  creek,  I 
saw  Castner  Hanway  riding  on  his  horse,  and 
Dr.  Pierce  running  along  side,  and  a  colored 
man  with  a  gun  some  few  yards  behind.  They  got 
opposite,  I  was  in  the  field,  and  they  were  in  the 
lane,  and  I  hallooed  to  the  colored  man  not  to 
shoot ;  he  didn't  mind  me,  he  stopped  ;  I  didn't 
see  any  thing  of  Dr.  Pierce,  but  when  I  got  there 
he  was  in  my  house,  and  Mr.  Hanway  rode 
away. 

Question.    What  did  Mr.  Hanway  do  ? 
Answer.    He  turned  on  his  critter  and  he  says 
several  times,  "dont  shoot,  boys." 
Question.    You  said  the  same  thing. 
Answer.    Yes,  sir. 

Question.  When  you  saw  Hanway  and  Dr. 
Pierce  they  were  between  the  creek  (if  I  under- 
stand you)  and  your  house  ? 

Answer.  Yes,  sir,  where  I  first  discovered 
them. 

Mr.  Cooper.  In  what  position  was  Dr.  Pierce 
at  the  time  this  black  man  was  about  to  shoot 
him.    Which  side  of  Hanway  was  he? 

Answer.  I  cannot  say  precisely  which  side ; 
he  was  close  by  him. 

Question.  Was  he  further  in  front  of  the  horse 
or  behind  ? 

Answer.  I  cannot  say  particularly  whether 
he  was  in  front  or  behind  ;  he  was  moving  about. 

Question.    Close  by  ? 

Answer.    Yes,  close  by. 

Question.    Did  Dr.  Pierce  go  to  your  house? 

Answer.  I  didn't  see.  I  saw  him  go  up  the 
lane,  but  he  didn't  go  to  the  house. 

Question.  Did  not  Joshua  Gorsuch,  a  wounded 
man  pass  your  house  and  make  a  stop  outside  the 
door? 

Answer.  That  I  cannot  say,  I  was  not  at  the  ' 
house. 

Question.  Afterwards  when  you  were  at  the 
house  ? 

Answer.    Yes,  sir. 


UNITED  STATES  V.  HANWAY. 


129 


'  Question.    Did  you  see  a  man  go  up  the  lane  ? 
Answer.    Yes,  sir. 
Question.    A  "wounded  man  ? 
Answer.    Yes.  sir. 
Question.    Were  you  close  to  him  ? 
Answer.    I  was  in  the  field,  and  he  was  in  the 
lane. 

Question.    Did  you  see  anybody  strike  Joshua 
G-orsuch  with  a  club,  a  gun,  or  anything  ? 
Answer.    Xo.  sir. 

Question.     Did  you  not  say  before  Roger 
Byer  at  Lancaster,  that  you  saw  him  struck  ? 
Answer.    I  did  not. 
Mr.  Brent.    Do  you  state  so  now  ? 
Answer.    Yes,  sir. 

Question.  Ycu  say  you  only  saw  one  follow- 
ing Dr.  Pierce  ? 

Answer.  Only  one  I  took  notice  of;  and  the 
reason  why  was  because  he  had  a  gun. 

Question.  Do  you  mean  to  say  there  were 
no  more  in  the  lane  ? 

Answer.  There  were  more  passing  and  re- 
passing. 

Question.  Were  they  before  or  behind  the 
horse  ? 

Answer.  Some  were  down  the  lane,  and  some 
coming  towards  him. 

Question.  You  say  you  heard  him  say,  "boys, 
don't  shoot  ?" 

Answer.    Yes,  sir. 

Question.  Were  they  shooting  in  his  direction 
at  the  time  ? 

Answer.  They  were  not  shooting  at  that 
time,  but  a  man  was  following  him  with  a  gun 
in  his  hand. 

Question.  Would  it  have  endangered  Han- 
way,  if  they  had  fired  at  Pierce  in  the  position 
in  which  Pierce  was  placed  ? 

Answer.    I  think  it  is  quite  likely  it  would. 

Question.   You  think  he  would  be  in  danger? 

Answet.    Yes.  sir. 

Question.  Did  you  hear  a  colored  man  ask 
the  other  why  he  did  not  shoot  Dr.  Pierce,  and 
how  it  was  ? 

Answer.    I  don't  remember. 

QuESTiftN  Don't  you  remember  his  saying  he 
had  no  more  powder  and  shot  ? 

Answer.    If  he  did.  I  have  forgotten. 

Question.    Have  you  forgotten  that  ? 

Answer.    Yes.  sir. 

Question.  I  will  ask  you  if  you  did  not  state 
this  in  the  presence  of  Alderman  Reigart,  that 
one  colored  man  said  to  the  other  black  man, 
the  reason  why  he  did  not  shoot  Dr.  Pierce  was, 
because  he  had  no  more  powder  and  shot ;  and 
do  you  recollect  stating  that,  or  don't  you  re- 
member it  now  ? 

Answer.  I  cannot  remember :  it  mishit  be  I 
did. 

Question.  Have  you  a  good  or  a  bad  memory  ? 

Answer.  My  memory  has  not  been  very  good ; 
at  that  time  it  was  very  much  confused. 

Question.  Did  you  call  the  man  by  his  name? 

Answer.  I  remember  calling  his  name.  I 
think  I  knew  his  name.  I  think  it  was  a  man  I 
knew  by  the  name  of  Dave  Johnson. 

Question.  How  many  negroes  do  you  suppose 
you  saw  on  that  occasion  ? 


Answer.  There  might  be  somewhere  between 
seventy-five  and  one  hundred.  There  might  be 
more,  and  there  might  be  less,  I  cannot  say. 

Question.  You  saw  another  man,  you  say, 
coming  along  ;  where  did  you  see  him,  and  how 
did  he  come ;  as  if  he  were  injured,  or  did  he 
walk  firmly  ? 

Answer.  He  walked  along,  he  twisted  a  little, 
and  he  staggered. 

Question.    Did  he  walk  ? 

Answer.  He  did  not  walk  like  as  if  he  was 
very  sound. 

Question.    He  twisted  and  staggered? 

Answer.    He  twisted. 

Question.    He  came  up  the  lane  ? 

Answer.  He  came  up  the  lane.  It  was  after 
I  saw  Hanway  and  Pierce. 

Question.  Did  you  know  it  was  Joshua  Gor- 
such  ? 

Answer.  Xo,  sir,  I  did  not  know  who  he  was 
until  I  inquired. 

Question.  Did  you  see  him  fall  down,  coming 
up  the  lane  ? 

Answer.  I  saw  him  fall  on  his  knees  once, 
but  there  was  no  person  near  him  then. 

Question.  Were  negroes  passing  at  the  time  ? 

Answer.  They  were  passing:  whether  they 
went  just  past  him,  I  do  not  know. 

Question.  Did  you  tell  any  one  not  to  touch 
him,  sir  ? 

Answer.    Not  that  I  remember,  sir. 

Question.  Did  you  notice  whether  his  head 
was  bleeding  ? 

Answer.    Xo,  sir. 

Mr.. Cooper.    That  is  all  I  desire  to  ask 

John  C.  Dickinson  affirmed. 

Examined  by  Mr.  Stevens. 

Question.  State  whether  you  had  any  con- 
versation with  Dr.  Pierce,  relative  to  this  affair 
at  Parker's  house ;  relative  to  Hanway  and  Kline, 
and  what  it  was  ? 

Answer.  On  the  day  after  the  murder  of  Mr 
Gorsuch,  I,  in  company  with  Dr.  Pierce,  took 
the  cars  at  Christiana,  and  went  to  Lancaster 
Our  principal  conversation  was  in  relation  to 
this  matter :  we  sat  on  the  same  seat,  side  by 
side.  I  had  an  introduction  to  him  before  we 
got  into  the  car.  He  said  to  me.  it  was  the 
rashest  piece  of  business  he  ever  knew,  that  the 
old  gentleman  caused  his  own  death,  and  his 
son's  wounds.  He  also  blamed  Kline,  he  said, 
very  much.  After  the  attack  had  commenced, 
they  were  stationed  round  the  house :  Kline,  he 
said,  left.  He  went  out,  and  he  called,  he  said, 
for  the  marshal  two  or  three  times,  but  there 
was  no  marshal  answered.  He  said  he  went 
back,  and  had  persuaded  the  old  gentlemen  to 
leave,  and  they  had  left :  in  coming  out  the  short 
lane  he  perceived  a  change  in  the  countenance  of 
the  old  man,  he  looked  calm  and  stern. 

Mr.  Cooper.  This  is  not  what  Dr.  Pierce  was 
asked  about.  He  was  interrogated  as  to  one  or 
two  things,  and  the  object  of  this  witness  is  to 
contradict  him,  and  it  would  be  evidence  for  no 
other  purpose  :  now  he  is  testifying  to  things  that 
were  not  detailed  in  evidence,  and  which  Dr. 
Pearce  did  not  assert  on  the  stand,  at  all.  And 
I  think  therefore,  it  is  but  right  that  the  esami- 


130 


TREASON  CASES. 


nation  should  be  confined  to  those  points  legiti- 
mately at  issue.  There  was  not  a  word  in  refer- 
ence to  this  matter,  spoken  by  Dr.  Pierce. 

Mr.  Stevens.  I  asked  Dr.  Pierce  about  the 
conversation  which  he  had  with  Mr.  Dickinson 
relative  to  Kline,  and  relative  to  Hanway's  saving 
his  life  ;  add  I  asked  him  particularly  about  the 
conversation  in  the  cars  going  to  Lancaster,  and 
he  didn't  recollect  any  of  it.  We  had  better  turn 
to  the  testimony. 

Mr.  Brent.  This  is  the  testimony  on  page 
131.  Did  you  ever  tell  Squire  Dickinson,  &c. 
(Reads.) 

He  didn't  know  the  party,  and  had  no  recol- 
lection of  going  with  him  in  the  cars.  He  denied 
nothing  of  this  conversation ;  he  didn't  recollect. 

Mr.  Stevens.  Here  it  is.  Did  you  never  tell 
Squire  Dickinson  you  believed  you  owed  your 
life  to  Hanway  ?  *  I  have  shown  he  was  intro- 
duced to  Squire  Dickinson,  and  sat  side  by  side 
with  him,  in  the  cars  from  Christiana  to  Lan- 
caster. 

Judge  Grier.  If  it  contradicts  the  witness, 
then  it  will  be  testimony.  If  it  confirms  him,  it 
can  do  you  no  harm,  and  them  no  good. 

Mr.  Cooper.  He  was  going  on  to  give  a  dif- 
ferent version  from  this,  when  I  stopped  him. 

Judge  Grier.  I  recollect  the  witness  admit- 
ted that  he  had  said  something  about,  if  it  had 
not  been  for  Hanway,  he  would  have  been  killed  ; 
whether  this  will  tend  to  confirm  or  contradict  the 
witness  we  cant  tell  till  we  hear  it.  If  it  tends 
to  contradict  him,  they  have  a  right  to  the  tes- 
timony ;  and  if  it  does  not,  it  does  them  no  good 
and  you  no  harm. 

Witness.  In  coming  out  of  the  short  lane, 
when  he  had  persuaded  the  old  gentleman  to 
leave,  he  found  his  countenance  had  changed ; 
he  looked  calm  and  stern,  and  he  wheeled  round 
and  said,  he  would  have  his  slaves,  or  he  would 
die  in  the  attempt.  The  old  gentleman  stepped 
three  or  four  paces — advanced  towards  the  ne- 
groes, and  received  a  wound  and  fell ;  and  Dick- 
inson Gorsuch  also  received  a  wound,  and  he  and 
the  Doctor  both  at  the  same  time  fired  two  or 
three  balls  of  the  revolver,  and  reserved  the  bal- 
ance to  save  his  life.  In  .running  he  caught  up 
to  Hanway,  the  negroes  in  full  pursuit.  He 
said  he  believed  he  owed  his  life  to  Hanway; 
that  when  he  got  up  to  him,  he  got  along  side  of 
the  horse,  and  kept  in  that  position,  and  Hanway 
turned  round  and  put  up  his  hand  and  said,  "  for 
God's  sake  not  to  shoot." 

Question.    What  did  he  say  about  Kline? 

Answer.  He  blamed  Kline.  He  said  he  left 
when  the  attack  had  commenced ;  and  he  went 
out  and  called  for  the  marshal,  and  there  was  no 
marshal  answered  ;  he  neither  saw  nor  heard  of 
him  after  the  attack,  and  he  left ;  when  the  ne- 
negroes  were  coming  to  the  house  Kline  left.  He 
censured  him.  I  heard  Dr.  Pierce  say  that  he 
blamed  him ;  he  was  conversing  with  Mr.  Cockney .„ 
He  said  he  blamed  Kline  much  for  the  transac- 
tion ;  that  was  after  he  came  back. 

Cross-examined  by  Mr.  Brent. 

Question.  This  was  about  the  next  day  after 
the  occurrence? 

Answer.  Yes. 


Question.    He  blamed  the  old  man  for  his 

owu  death,  and  his  son's  wounds  ? 
Answer.  Yes. 

Question.  That  the  old  man  and  all  were  re- 
tiring, didn't  he  say  that  they  were  compelled  to 
retire  by  the  superior  force  on  the  ground  ? 

Answer.  I  think  not;  he  said  he  persuaded 
the  old  gentleman  to  leave. 

Question.  Did  he  assign  any  reason  why  he 
persuaded  him  to  leave  ? 

Answer.    I  cant  say. 

Question.  Was  it  not  that  he  found  the  ne- 
groes too  strong  ? 

Answer.  Not  to  my  knowledge  ;  he  did  not 
state  it. 

Question.    He  stated  that  they  retired  ? 
Answer.  Yes. 

Question.  Did  he  state  that  he  heard  Kline 
order  the  retreat  ? 

Answer.    Not  to  my  knowledge. 

Question.  May  he  not  have  stated  that,  with- 
out your  recollecting  it? 

Answer.    He  may,  but  I  cant  recollect  it. 

Question.  He  said  they  were  retreating,  and 
when  they  got  down  some  distance  a  change  came 
over  the  old  man's  face,  and  he  said  he  would 
have  his  slaves,  or  would  die  in  the  attempt,  and 
he  returned,  and  in  consequence  of  that  he  was 
killed  and  his  son  wounded  ? 

Answer.  Yes. 

Question.  Did  he  make  a  statement  to  you 
about  Hanway's  having  been  at  the  oars  before- 
hand ? 

Answer.    No,  sir. 

Question.  Did  he  detail  the  whole  transact- 
ion fully  ? 

Answer.    He  showed  me  his  wounds. 

Question.  He  didn't  particularly  detail  the 
whole  transaction,  but  in  speaking  about  it  he 
said  it  was  the  old  man's  imprudence  that  had 
cost  him  his  own  life  and  his  son's  wounds. 

Answer.  Yes. 

Question.  And  he  went  on  to  blame  Kline, 
when  he  came  down  and  called  and  looked  for 
him,  he  was  not  to  be  seen  ? 

Answer.  Yes. 

Question.  As  to  Hanway's  saving  his  life, 
did  he  state  that  he  sheltered  himself  behind 
Hanway's  horse  ? 

Answer.  He  said  he  kept  alongside  of  Han- 
way, and  Hanway  was  on  horseback. 

Question.    Did  he  say  what  his  object  was  ? 

Answer.    I  don't  think  he  did. 

Question.  Did  he  say  it  was  to  shelter  him- 
self by  Hanway's  person  ? 

Answer.  I  don't  think  he  did.  He  said  he 
kept  alongside,  and  that  he  believed  Hanway  had 
saved  his  life. 

Question.  And  he  didn't  state  his  object  in 
keeping  alongside  ? 

Answer.    I  don't  know  that  he  did. 

Question.  He  considered  that  Mr.  Hanway 
had  saved  his  life,  by  turning  round  and  saying 
to  the  negroes,  for  God's  sake,  don't  shoot  ? 

Answer.  Yes. 

Question.  And  in  that  way  he  had  saved  his 
life  ? 

Answer.    He  said  that  he  turned  round  and 


UNITED  STATES   V.  HANWAY. 


131 


put  his  liand  up  and  said,  for  God's  sake  don't 
shoot. 

Question*.  Did  he  say  the  negroes  seemed  to 
mind  Mr.  Hanway? 

Answer.    I  don't  know  that  he  did. 

Question.  Was  not  that  The  idea  expressed 
by  him,  and  the  impression  on  tout  mind  ? 

*  Answer.  The  impression  made  upon  me,  was, 
that  Hanway  had  saved  his  life. 

Question.  And  the  mode  in  which  he  had 
done  it,  was  hy  turning  round,  and  telling  the 
negroes  for  God's  sake  not  to  shoot  ? 

Answer.  Yes. 

Question.  Did  he  say  that  the  negroes  turned 
back,  or  a  portion  of  them,  after  Mr.  Hanway 
had  said  that  ? 

Answer.  He  said  he  believed  he  owed  his  life 
to  Mr.  Hanway. 

Question.  Did  he  say  that  the  negroes  turned 
back,  or  a  portion  of  them  did,  after  Hanway  had 
said  that. 

Answer.    That  I  don't  know,  I  don't  recollect. 

Dr.  Ashmore  J.  Patterson,  sworn. 

Examined  by  Mr.  Stevens. 

Question.  Tell  the  Court  and  Jury  any  thing 
you  heard  Dr.  Pierce  say  with  regard  to  the  con- 
duct of  Mr.  Hanway,  in  that  affair  at  Parker's  ? 

Answer.  On  the  evening  of  the  same  day  of 
the  riot.  I  met  Dr.  Pierce  at  the  house  of  Levi 
Pownell.  giving  attendance  to  Dickinson  Gor- 
such,  his  cousin,  and  he  and  I  had  some  conver- 
sation on  the  porch  in  front  of  the  house.  He 
commenced  giving  an  account  of  the  events  of  the 
morning.  After  having  detailed  some  of  them, 
he  spoke,  in  his  retreat  from  the  ground,  he  fell 
in  with  Hanway,  and  his  exact  language  he  made 
use  of.  I  don't  remember,  but  the  purport  was, 
that  he  believed  he  owed  his  life  to  Mr.  Hanway, 
in  giving  defence  against  the  infuriated  blacks 
who  Were  pursuing  him. 

Me.  Bbent.  The  purport  is  not  evidence, 
give  what  he  said. 

Witness.  I  could  not  give  his  exact  language? 

Mr.  Brent.    Give  the  substance  of  it. 

Judge  Grier.  You  are  not  to  give  inferences, 
but  if  you  cannot  recollect  the  words,  give  us 
as  near  as  you  can  the  substance. 

Witne-s.  It  is  not  a  mere  inference  from 
what  he  said.  His  language  to  me  was  conclu- 
sive in  what  he  meant.,  but  his  words  I  dont  re- 
member. He  spoke  to  me  of  Hanway' s  defend- 
ing him  against  the  blacks,  he  did  not  detail  the 
manner  of  that  defence  :  but  he  said  he  believed 
he  owed  his  life  to  Hanway.  those  were  his 
words  in  that  matter  as  near  as  I  can  remember. 

Question.    Any  thing  said  about  Kline  ? 

Answer..  Yes.  he  commenced  talking  about 
Kline  first,  he  spoke  to  me  of  Kline,  before  the 
attack  was  made,  having  been  boasting  all  the 
time  of  his  former  feats  of  valor  and  induced 
them  to  believe  he  was  a  man  of  great  courage, 
but  when  they  got  on  the  greund,  as  soon  as 
there  was  evidence  of  danger,  that  his  courage 
seemed  to  forsake  him  and  he  left  the  ground. 

Cross-examined  by  Mr.  Brent, 

Question.  He  said  there  was  an  appearance 
of  danger  before  his  courage  forsook  him,  that 
the  danger  preceded  it  ? 


Answer. 


.dence  of 


Question.  Did  you  make  a  post  mortem  exami 
nation  of  the  body  of  Mr.  Gorsuch  ? 

Mr.  Stevens.  I  have  not  asked  the  wi'ness  a 
word  about  that. 

Judge  Geier.  I  suppose  it  is  immaterial  to 
the  general  question  before  us.  You  cannot  bring 
new  evidence-in-chief  on  a  cross-examination  ol 
their  witness. 

James  G.  Henderson  affirmed. 

Examined  by  Mr.  Stevens. 

Question.  Had  you  any  conversation  with 
Dr.  Pierce  after  this  affair  at  Parker's  ;  and  vr_  a 
was  it  ? 

Answer.  I  hadn't  any  conversation  with  Dr. 
Pierce.  I  heard  him  relate  to  others  what  took 
place  on  the  morning  of  the  11th  of  September, 
or  part  of  it,    I  left  the  room  before  he  concluded, 

Question.    What  did  he  say  ? 

Answer.  I  cant  give  precisely  the  language. 
He  appeared  to  be  excited  and  spoke  fast. 

Judge  Grier.  As  near  as  you  can  give  it .; 
giving  substantially  the  meaning. 

Witness.  He  said  he  acted  cowardly — the 
Marshal — and  left  the  ground  improperly,  whicr 
!  he  believed  encouraged  the  negroes  to  fire.  . 

2so  cross-examination. 

William  D.  Kelley,  sworn. 

Examined  by  Mr.  Stevens. 

Question.  Are  you  acquainted  with  Henry  H 
\  Kline  of  this  city  ? 

Answer.    I  am.  sir. 

Question.  What  is  his  general  character  foi 
;  truth  ? 

Mr.  G.  L.  Ashmead.  The  first  question  ii 
;  such  cases  is,  does  the  witness  know  the  genera 
,  character  of  the  party  for  truth  and  vera;-ity  ? 

Judge  Kane.  It  is  pretty  well  comprehendec 
;  when  you  have  an  intelligent  witness. 

Mr.  Stevens.  I  suppose  Judge  Kelley  ander 
I  stands  me. 

Question.  Do  you  know  his  general  character 
;     Answer.    I  believe  I  do. 

Question.  Do  you  know  his  general  charade 
for  truth  and  veracity  ? 

Answer.    I  have  heard  it  much  spoken  of. 
i     Question.    What  is  it  ? 
i     Answer.    Very  bad. 

Question.  Would  you  from  that  general  char 
acter  believe  him  on  oath  ? 

Answer.  That  would  depend  entirely  upo] 
,  circumstances. 

Question.  Would  you  place  confidence  in  wha 
I  he  would  say  upon  oath  ? 

Mr.  Cooper.    That  is  not  the  proper  question 
i     Judge  Grier.    The  witness  has  fairly  answere> 
I  the  question  in  the  way  I  think  it  would  be  an 
swered  by  every  man. 

Francis  Jobson,  affirmed. 

Examined  by  Mr.  Stevens. 

Question.    Do  you  know  Henry  H.  Kline  ? 

Answer.    I  do. 

Question.    How  long  have  you  .known  him  ? 

Answer.    About  twelve  years. 

Mr.  Cooper.  May  it  please  your  Honors 
:  would  it  be  proper  that  this  witness  should  b 
present.  He  desires  to  be  present  to  see  th 
I  persons  and  to  instruct  counsel  as  to  their  mc 


132 


TREASON  CASES. 


lives,  and  I  see  no  impropriety  in  his  being 
present — he  don't  know  who  their  witnesses  are  ? 

Judge  Grier.  You  have  a  right  to  have  him 
here. 

Mr.  Cutler.  There  is  not  the  slightest  ob- 
jection on  our  part. 

Witness  continued. 
■    Question.    Do  you  know  his  general  cha- 
racter ? 

Answer.  Yes. 

Question.  Do  you  know  his  general  charac- 
ter for  truth  and  veracity  ? 

Answer.  I  do.  I  have  been  a  good  deal  with 
him,  and  seen  him  frequently,  every  week  and 
fevery  day  perhaps  for  ten  years. 

Question.    What  is  that  character  ? 

Answer.    I  should  say  notoriously  bad. 

Cross-examined  by  Mr.  Cooper. 

Question.  Do  you  speak  of  his  general  cha- 
racter, or  his  character  for  veracity  ? 

Answer.    His  general  character. 

Question.  And  not  his  character  for  veracity 
n  particular  ? 

Answer.    That,  in  connection  with  the  other. 

Question.    Who  have  you  heard  speak  of  his 
;haracter  for  truth  and  veracity  ? 
i  Answer.    I  have  heard  Jacob  Walker  of  our 
li  strict.    I  can't  recollect  when.    It  is  within  a 
rear. 

Question.    Was  it  within  a  month  ? 

Answer.    I  can't  say. 

Question.    Who  else  did  you  hear  ? 
I  Answer.    With  regard  to  two  particulty  per- 
ons  I  heard  speak  most  about  him — they  are 
eceased — they  are  Mr.  Roberts,  who  was  a  con- 
table  of  Upper  Delaware  ward,  and  Mr.  Dohnert. 

Question.  Did  they  say  anything  in  regard 
3  his  character  for  truth,  or  in  general  ? 

Answer.   Not  particularly. 

Question.  Then  it  was  not  in  reference  to  his 
haracter  for  truth  they  spoke? 

Answer.  It  was  in  reference  to  his  general 
ad  character.  I  never  even  asked  the  question 
f  bis  taking  an  oath.  I  didn't  suppose  he  would 
o  such  a  thing.  I  thought  he  had  conscience 
nough  left  not  to  do  such  a  thing. 
'"'  Question.    That  you  say  on  your  oath  ? 

Answer.  Yes. 

Question.  Had  you  and  Kline  any  differ - 
nce? 

Answer.  I  don't  think  Mr.  Kline  knows  me. 
have  shunned  him  always,  but  his  character  is 
>  notorious,  that  I  could  not  help  hearing  it.  I 
ave  heard  George  Dyer  speak  of  his  general 
ad  character. 

Mr.  John  W.  Ashmead.  I  am  anxious  this 
'  lould  be  confined  to  a  proper  point,  and  yet  I 
ish  to  give  the  defence  as  large  a  license  as  is 
impatible  with  the  rules  of  evidence.  The 
i-oper  question,  is  first :  do  you  know  his  gene- 
il  character  for  truth  and  veracity  ?  He  says 
e  does,  and  yet  all  the  matters  given  now,  are 
ot  at  all  connected  with  his  truth  and  veracity? 

Judge  Grier.  If  the  questions  are  put  right 
le  witness  has  nothing  to  do  but  to  answer. 

Mr.  ooper.  The  usual  questions  are : — Do 
ou  kric  v  the  witness  ?  What  is  his  character  in 
ie  neighborhood  in  which  he  lives  for  truth  and 


veracity  ?  Have  you  ever  heard  him  spoken 
of? 

Judge  Grier.  As  to  telling  the  particular 
persons  who  have  spoken  of  him,  to  make  up  a 
character — it  is  hard  to  say.  I  know  the  charac- 
ter of  many  persons,  and  yet  I  could  not  tell  any 
individuals  who  have  spoken  of  them — and  it 
would  not  be  his  general  character  if  I  got  it 
from  one  or  two. 

Mr.  Cooper.  It  is  proper  to  know  whether 
he  is  speaking  of  his  character  generally,  or  for 
truth  and  veracity,  and  he  has  stated  in  every 
instance  that  the  conversation  was  as  to  his 
general  character,  and  not  particularly  as  to 
truth  and  veracity. 

Mr.  Ludlow.  (To  the  witness.)  Where  do 
you  reside  ? 

Answer.    In  the  Northern  Liberties. 

Question.    What  is  your  business  ? 

Answer.  Collector  of  water  rents  the  last 
year.  I  am  a  collector  still.  I  reside  where  T 
have  lived  for  nine  years,  in  Wood  street,  below 
Sixth,  No.  132. 

William  D.  Francke  sworn. 

Examined  by  Mr.  Stevens. 

Question.  Are  you  acquainted  with  Henry 
H.  Kline  ? 

Answer.   -I  am,  sir. 

Question.    How  long  ? 

Answer.    Fourteen  years. 

Question.  Do  you  know  his  general  charac- 
ter for  truth  and  veracity  ? 

Answer.    Only  from  hearsay. 

Question.    What  is  that  ? 

Answer.    It  is  bad. 

Question.  From  that  character,  could  you 
believe  him  on  oath  ? 

Answer.    I  think  not,  sir. 

Cross-examined  by  Mr.  Cooper. 

Question.    Where  do  you  live  ? 

Answer.    No.  14  Orange  street. 

Daniel  Evans  affirmed.  • 

Examined  by  Mr.  Stevens. 

Question.    Do  you  know  Henry  H.  Kline  ? 

Answer.    I  do. 

Question.    How  long? 

Answer.    I  have  known  him  for  some  years. 
Question.  Do  you  know  his  general  character 
for  truth  and  veracity  ? 
Answer.    I  do. 
Question.    What  is  it? 
Answer.    It  is  bad. 
Cross-examined, 

Mr.  Ludlow.    Who  subpoenaed  you  ? 
Answer.    I  was  not  subpoenaed  at  all. 
Question.    Then  you  came  voluntarily  ? 
Answer.    I  was  asked  to  come  by  one  of  the 
counsel. 

Question.    Where  do  you  live? 

Answer.    Marshall  and  Buttonwood. 

Mr.  Stevens.    What  is  your  business  ? 

Answer.    Fire  proof  chest  maker. 

Mr.  Brent.  One  of  the  attornies  requested 
you  to  come  ;  how  did  he  know  you  would  give 
this  evidence  ? 

Answer.    I  don't  know. 

Question.  Did  you  state  it  to  him  of  your 
own  accord  ? 


UNITED  STATES  V.  HAW  AY. 


133 


Answer.    I  informed  the  attorney. 

Question.  You  informed  him  that  you  could 
give  it,  and  he  requested  you  to  come  ? 

Answer,  I  can  give  a  little  more,  if  you 
-want  it. 

Mr.  Brent.    Give  it  all. 

Witness.  On  the  18th  of  September  last,  I  j 
had  some  business  at  Mr.  Lee's  office,  the  gen- 
tleman sitting  here,  in  Sixth  street,  above  Arch, 
and  Mr.  Lee  was  writing  a  paper,  very  kindly, 
that  I  went  there  to  get ;  and  while  he  was 
was  doing  that,  this  Kline  came  in  there,  and  j 
from  the  conversation  he  had  with  Mr.  Lee, 
which  I  suppose  I  have  no  right  to  mention 
here.  I  stepped  up  to  this  gentleman,  and  asked 
him  if  he  was  the  person  that  had  been  to  Chris- 
tiana, and  he  said  he  was,  to  catch  these  blackies. 
I  said  to  him,  I  have  heard  from  good  authority 
that  Mr.  Lewis,  a  man  I  never  saw,  came  there  : 
just  in  time  to  save  your  life.  Well,  he  twisted  j 
around  there  a  good  while,  and  didn't  say  a  great  | 
deal,  and  finally  said,  "At  the  time  they  came 
up  there  was  a  great  confusion,  hallooing,  shout- 
ing and  hooting  going  on,  and  it  was  hard  to 
tell  much  about  it ;  but  he  saved  his  own  life  by 
getting  behind  Lewis's  horse,  and  dodging  about, 
and  that  he  saved  his  life,  and  that  they  could 
not  shoot  him  without  shooting  the  damned 
Quaker  abolitionist."  Then  we  talked  the  mat- 
ter over  a  little  more,  Mr.  Lee  was  hunting  my 
paper,  and  I  put  the  question  to  him,  and  he 
said  "  the  damned  Quaker  abolitionists  had  insti- 
gated this  affray  before." 

Question.  From  whom  did  you  hear  that 
Lewis  came  in  time  to  save  his  life  ? 

Answer.  I  heard  it  at  the  corner  of  Spring 
Garden  and  Seventh  streets,  in  the  hardware 
store  there. 

Question.    Who  from  ? 

Answer.  It  was  a  white  man  in  Kinderdine 
and  Justice's  store. 

Question.    Who  said  it? 

Answer.  It  is  hard  to  tell  which  one — they 
were  all  talk'ng  about  it. 

Question.  And  you  heard  that  Lewis  had 
come  in  time  to  save  Kline's  life  ? 

Answer.  Yes. 

Question.  And  you  told  Kline,  and  he  said 
there  was  a  good  deal  of  noise  and  confusion 
when  they  came  up — what  they  ? 

Answer.  That  is  the  thing — that  is  what  I 
wanted  to  know.  I  was  talking  about  Lewis 
myself. 

Ques  tion.    He  said  he  had  protected  his  life 
behind  Lewis's  horse  ? 
Answer.  Yes. 

Question.    Then. Lewis  had  a  horse? 

Answer.    According  to  his  statement. 

Question.    When  was  that? 

Answer.    On  the  18th  of  September. 

Question.  Did  you  know  he  made  a  deposi- 
tion before  that  ? 

Answer.    I  never  read  that. 

Question.  You  hadn't  seen  his  evidence  in 
the  papers  at  the  time  of  this  conversation  ? 

Answer.  No. 

Question.  Could  Colonel  Lee  hear  this  con- 
versation  ? 


Answer,  I  don't  think  he  could ;  he  was 
hunting  the  papers.  My  little  boy  heard  part, 
when  he  said  he  got  behind  the  horse,  and  they 
could  not  shoot  him  without  shooting  the  damned 
Quaker  abolitionist. 

Mr.  Brent.  Have  you  anything  else  you  can 
tell? 

Answer.    I  can't  recollect  anything  else. 

Judge  Grier.  When  a  witness  is  called  to 
character,  I  don't  know  that  this  is  proper — It  is 
taking  up  time  to  no  purpose. 

George  Simpson  affirmed. 

Examined  by  Mr.  Stevens. 

Question.    Do  you  know  Henry  H.  Kline? 

Answer.    I  do. 

Question.    How  long  ? 

Answer.    I  suppose  fifteen  years  or  more. 

Question.  Do  you  know  his  general  character 
for  truth  and  veracity  ? 

Answer.  I  have  heard  a  good  deal  of  his 
general  character  for  truth  and  veracity. 

Question.  What  is  his  general  character  for 
truth  and  veracity  ? 

Answer.    It  is  bad. 

Question.    From  that  character  would  you 
believe  him  on  oath  ? 
Answer.    I  would  not. 
Cross-examined. 

Me.  Ludlow.  Were  you  subpcened  to  attend 
this  trial  ? 

Answer.    I  was. . 

Question.  Have  you  ever  said  publicly  in  the 
presence  of  one  or  more  persons  that  you  be- 
lieved any  man  who  would  go  for  a  negro,  ought 
not  to  be  believed  cn  oath  ? 

Answer.  I  said  I  believed,  they  could  not 
get  a  decent  man  to  be  a  dog-catcher,  a  hog- 
catcher  or  a  nigger-catcher. 

Question.  Have  you  not  said  more  than  once 
that  you  would  not  believe  a  man  who  went  on 
sucn  business,  on  his  oath  ? 

Answer.  Not  on  that  business  alone,  but  I 
said  what  I  told  you. 

Mr.  Cooper.  If  he  was  a  dog  catcher  and  a 
hog  catcher,  and  a  nigger  catcher — all  three, 
you  would  not  believe  him  Y 

Answer.    Yes,  all  three. 

Question.    Where  do  you  reside  ? 

Answer.    No.  475  North  Front-street, 

Question.    Who  subpoenaed  you? 

Answer.  I  can't  say,  I  received  the  subpoena 
by  an  officer,  I  can't  recollect  his  name. 

Question.    Was  it  Jacob  Albright  ? 

Answer.    I  believe  it  was. 

Isaiah  G.  Stratton  sworn. 

Examined  by  Mr.  Stevens. 

Question.  Do  you  know  the  general  charac- 
ter of  Henry  H.  Kline  for  truth  and  veracity  ? 

Answer.    I  know  it  from  reputation. 

Question.    What  is  that  character  ? 

Answer.    I  think  it  is  bad. 

Cross-examined. 

Mr.  Cooper.    Who  subpoenaed  you  ? 
Answer.    That  is  more  than  I  can  tell. 
Question.    Was  it  Mr.  Albright  ? 
Answer,    I  was  not  at  home  when  the  gentle- 
man called  with  the  subpoena. 
Question.    Where  do  you  live  ? 


134  TREASON  CASES. 


Answer.    At  256  Ridge  Road. 

"VVm.  Strourd's  sworn. 

Examined  by  Mr.  Stevens. 

Question.  Are  you  acquainted  with  the  gene- 
ral character  of  Henry  H.  Kline  for  truth  and 
Veracity  ? 

Answer.1   I  should  suppose  that  I  was. 
Question.    How  long  have  you  known  him  ? 
Answer.    About  eleven  years. 
Question.    What  is  that  character  ? 
Answer.    I  should  term  it  bad. 
Cross-examined  by  Mr.  Ludlow. 
Question.    Who  subpoenaed  you? 
Answer.    Mr.  Albright. 
Question.    What  is  your  business  ? 
Answer.    A  ladies'  shoemaker  by  profession, 
I  don't  follow  that  now. 

Question.    Have  you  been  a  police  officer? 
Answer.  Yes. 

Question.    Are  you  one  now  ? 
Answer.  No. 

Question.    What  is  your  business  now  ? 
Answer.  I  hold  a  situation  under  the  general 
government,  I  am  a  night  inspector. 
Jacob  Walker  sworn. 

Question.    Do  you  know  the  general  charac- 
ter for  truth  and  veracity  of  Henry  H.  Kline  ? 
Answer.    It  is  very  bad  indeed. 
Question.    You  do  know  it  ? 
Answer.  Yes. 

Cross-examined  by  Mr.  Ludlow. 
Question.    Who  requested  you  to  come  here  ? 
Answer.    I  can't  tell  the  constables  name? 
Question.    Was  it  Mr.  Albright  ? 
Answer.    Yes,  sir. 

Mr.  Read.  T  suppose  we  have  have  a  right 
to  employ  an  individual  to  subpoena  our  witnesses. 

Mr.  Cooper.  We  don't  object  to  that,  we  have 
a  right  to  know  this. 

Mr.  Read.  Certainly,  we  will  tell  you  with 
pleasure,  but  I  suppose  we  have  a  right  to  em- 
ploy a  man  to  serve  our  subpoenas,  as  the  gov- 
ernment has  ? 

Mr.  Stevens,  It  may  be  that  they  think  Mr. 
Albright's  character  is  so  bad  that  it  would  con- 
taminate the  witness  by  serving  a  subpoena  on 
them. 

John  Hinkle  sworn. 

Question.  Do  you  know  the  general  character 
for  truth  and  veracity  of  Henry  H.  Kline  ? 

Answer.  Yes,  sir,  it  is  very  bad  what  I  do 
knew  of  it. 

Question.    How  long  have  you  know  him  ? 

Answer.    About  twenty  years. 

Cross  examined. 

Mr.  Cooper.  Do  you  speak  of  his  general 
character,  or  for  truth  and  veracity  ? 

Answer.  Of  his  general  character  ;  I  never 
heard  anything  good  of  him  in  my  life. 

Question  His  character  for  truth  and  vera- 
city, what  do  you  know  of  that  ? 

Answer.  From  what  I  have  heard  as  to  that, 
I  should  hardly  believe  him  on  his  oath,  unless 
he  was  interested. 

Question.  If  he  was  interested  you  would  be- 
lieve him  ? 

Answer.  If  he  was  interested  I  would  not 
believe  him. 


Question.    If  he  was  not? 
Answer.    If  he  was  not  he  might  tell  the 
truth. 

Question.    Did  Mr.  Albright  subpoena  you? 
Answer.    Yes,  I  believe  he  did,  I  got  the 
subpoena. 

Norman  Ackley  sworn. 

Question.    Do  you  know  Henry  H.  Kline  ? 

Answer.  Yes. 

Question.    How  long  ? 

Answer.  Between  the  neighborhood  of  ten  and 
twelve  years. 

Question.  Do  you  know  his  general  character 
for  truth  and  veracity  ? 

Answer.    It  is  pretty  bad. 

Question.    You  know  it  ? 

Answer.    Yes,  sir. 

Cross-examined. 

Mr.  Cooper.  Have  you  ever  heard  the  char- 
acter of  Mr.  Kline  for  truth  and  veracity  spoken 
of? 

Answer.    I  have. 
Question.    By  whom  ? 

Mr.  Stevens.  The  Court,  I  think,  (I  do  not 
care,)  but  I  think  the  Court  intimated  that  that 
was  not  proper. 

Mr.  Cooper.  We  do  not  usually  ask  questions 
that  are  not  proper. 

Witness.  I  have  heard  Mr.  Walker,  a  .man 
who  keeps  a  grocery  store  at  Front  and  Coates 
street. 

Question.    When  ? 

Answer.    Some  eight  years  ago. 

Question.    What  is  your  occupation  ? 

Answer.    I  am  an  officer. 

Question.    A  constable? 

Answer.  A  marshal  and  a  constable  together. 
I  am  an  officer  of  the  Marshal's  police,  and  con- 
stable. 

Anthony  Hoover  sworn. 

Question.  How  long  have  you  known  Henry 
H.  Kline  ? 

Answer.    Twelve  or  fifteen  years 

Question.  Do  you  know  his  general  character 
for  truth  and  veracity  ? 

Answer.  From  what  I  have  heard,  yes,  I 
know  some. 

Question.    What  is  it? 

Answer.  It  has  been  bad  whenever  I  have 
heard. 

Aaron  B.  Fithian  sworn. 

Question.  How  long  have  you  known  Henry 
H.  Kline  ? 

Answer.    About  twelve  or  fifteen  years. 
Question.  Do  you  know  his  general  character 
for  truth  and  veracity  ? 

Answer.    I  have  heard  it  spoken  of. 
Question.    What  is  it  ? 
Answer.    It  is  pronounced  very  bad. 
George  K.  Wise  sworn. 

Question.  Do  you  know  the  general  character 
for  truth  and  veracity  of  Henry  H.  Kline  ? 
Answer.    From  hearsay  I  do. 
Question.   Very  long  ? 

Answer.  For  a  number  of  years.  I  could 
not  say.    Probably  eight  or  ten. 

Question.    What  is  that  character  ? 
Answer.    It  is  bad. 


UNITED  STATES  V.  HASTWAY. 


135 


John  Mackey  sworn. 

Question.  How  long  have  you  known  Henry 
H.  Kline  ? 

Answer.  For  a  number  of  years.  Perhaps 
eight  or  ten,  and  perhaps  longer. 

Question.  Do  you  know  his  general  character  . 
for  truth  and  veracity  ? 

Answer.    I  should  say  it  was  bad. 

Cross-examined. 

Mr.  Cutler.    Who  subpoenaed  you? 
Answer.    Jacob  Albright. 
Question.    Who  did  you  ever  hear  speak 
of  Mr.  Kline's  character  for  truth  ? 

Answer.    I  have  heard  Charles  Muschert. 
Question.    When  ? 

Answer.  I  have  heard  him  speak  within  a 
month. 

Question.  Did  you  ever  hear  him  speak  before 
a  month  ? 

Answer.  I  don't  think  I  have.  I  heard  Mr. 
Walker 

Question.    Within  a  month  ? 
Answer.  Yes. 

Mr.  Reed.  What  was  his  character  two  years 
ago  ? 

Answer.  As  far  as  I  have  heard,  people  would 
generally  say,  when  he  came  in  question,  would 
rather  doubt  him,  as  if  they  had  no  confidence  in 
him.    I  have  always  looked  on  him  in  that  way. 

Andrew  Redheffer,  sworn. 

Question.  How  long  have  you  known  Henry 
H.  Kline  ? 

Answer.    Upwards  of  twenty  years. 

Question.  Do  ytou  know  his  general  charac- 
ter for  truth  and  veracity  ? 

Answer.  I  could  say  within  the  last  ten 
years,  I  would  speak  of  that  particularly. 

Question.    What  is  that  character  ? 

Answer.    It  is  bad. 

Cross-examined. 

Mr.  Cooper.    Where  did  you  know  Kline  ? 
Answer.    In  and  about  the  Northern  Liber- 
ties. 

Question.  Has  he  lived  there  during  this 
period  you  spoke  of?  • 

Answer.  I  can't  say  he  has — he  might  have 
lived  there  in  18-10. 

Question.  Has  he  lived  there  in  the  last  ten 
years  ? 

Answer.    I  don't  know — I  have  seen  him. 

Question.  Did  you  know  him  when  you  came 
here — didn't  you  ask  a  person  to  point  him  out  ? 

Answer.  No.  I  think  I  knew  him  from  the 
time  he  was  young,  and  his  brother  George. 

Question.  Didn't  you  call  on  a  person  to  point 
him  out  to  you  ? 

Answer.    Oh !  no. 

John  McEwen,  sworn. 

Question.    Do  you  know  the  general  charac- 
ter of  Henry  H.  Kline  for  truth  and  veracity  ? 
Answer.    I  do. 
Question.    What  is  it  ? 
Answer.    It  is  bad,  very  bad 
Cross-examined. 

Mr.  Ludlow.    Have  you  ever  had  any  diffi- 
culty with  Mr.  Kline  ? 
Answer.    No,  sir. 
Question.    Are  you  certain  of  that  ? 


Answer.    I  am. 

Jacob  Albright,  jr.,  on  voir  dire. 

Question.  Did  you  serve  that  subpoena  on 
the  witnesses  therein  named? 

Answer.  I  have — except  Jonathan  Thomas, 
Ambrose  Powell,  and  Cyrus  Brinton,  and  Allen 
Evans  accepted  service  of  it.  I  showed  him  the 
subpoena,  and  he  accepted  service,  and  told  me 
I  need  not  read  it  to  him 

Mr.  Stevens.  We  wish  to  call  the  names  of 
these  witnesses,  to  see  if  they  are  here  ? 

John  Jenkins,  called. 

Judge  Grier.  Did  you  serve  the  ■  subpoena 
personally  upon  John  Jenkins  ? 

Witness.  Yes,  sir  he  knew  I  had  the  sub- 
poena and  accepted  it. 

The  names  on  the  subpoena  were  called  and 
the  witness  says  he  served  the  subpoena  on  them 
personally,  except  Allen  Williams. 

Mr.  Stevens.  Did  you  serve  it  on  Allen 
Williams  ? 

Answer.  I  served  it  on  Allen  Evans,  it  should 
be. 

Mr.  Stevens.  We  will  have  to  pass  him  then. 
We  ask  attachments  for  these  witnesses. 

Judge  Crier.  Let  the  crier  call  the  names 
and  if  they  dont  answer,  the  clerk  will  make  the 
attachments. 

John  Carr  affirmed. 

Examined  by  Mr.  Stevens. 

Question.    Do  you  know  Harvey  Scott  ? 

Answer.    I  am  acquainted  with  him. 

Question.  Where  did  he  live  at  the  time  this 
affair  took  place  at  Parker's  house  ? 

Answer.    At  my  house,  in  my  employ. 

Question.  State  where  he  was  on  the  night 
between  the  10th  and  11th  of  September; 
the  night  previous  to  this  affair  at  Parker's 
house  ? 

Mr.  Cooper.    We  object  to  this. 

Judge  Grier.  Let  the  gentleman  state  what 
he  offers  to  prove,  and  the  object. 

Mr.  Stevens.  You  will  remember  that  the 
United  States  gave  in  evidence  by  Kline,  the  fact 
that  on  the  ground  at  the  time  that  the  defendant 
and  others  were  there,  Harvey  Scott  was  present ; 
that  he  saw  him,  and  has  seen  him  since.  We 
now  offer  to  prove  by  this  and  other  witnesses, 
that  at  that  time  he  was  in  the  house  of  Mr. 
Carr,  four  miles  distant ;  that  he  was  fastened 
into  a  room  that  night  by  Mr.  Carr,  and  let  out 
in  the  morning  by  Mr.  Carr  about  day  break ; 
that  he  took  breakfast,  and  that  he  went  and 
struck  all  day  on  the  anvil,  he  being  a  blacksmith, 
and  was  not  away ;  to  prove  that  what  the  United 
States  gave  in  evidence  by  Kline,  is  utterly  and 
totally  false. 

Mr.  Cooper.  The  witness  did,  without  being 
interrogated  to  the  point,  state  in  his  examina- 
tion-in-chief, that  Scott  had  been  present ;  he 
believed  a  negro  was  on  the  ground  named  Har- 
vey Scott.  The  counsel  for  the  prisoner,  when 
the  witness  was  turned  over,  proceeded,  or  were 
about  to  proceed  to  cross-examine  Mr.  Kline  as 
to  the  presence  of  Harvey  Scott;  an  objection 
was  interposed,  and  the  question,  if  I  remember 
rightly,  was  not  asked. 


Mr. 


There  was  not  any  objection, 


136 


TREASON  CASES. 


and  I  went  thoroughly  through  the  cross-exami- 
nation, to  see  if  he  was  certain.  By  turning  to 
pages  93  and  94  of  the  printed  notes,  you  will 
find  it  so. 

Mr.  Cooper.  Perhaps  it  is  as  stated :  but  we 
objected  at  the  time  his  name  was  mentioned. 
They  proceeded  to  examine  whether  Scott  was 
present  or  not;  we  objected  to  their  doing  so, 
with  the  intention  of  contradicting  Kline  after- 
wards. 

Mr.  Stevens.  The  gentleman  had  better  look 
to  the  book;  they  did  not  object  at  all. 

Mr.  Cooper.  We  did  object  at  the  time ;  and 
there  was  an  intimation  from  the  Court,  either 
in  reference  to  this  particular  witness,  or  another, 
that  they  could  cross-examine  for  the  purpose  of 
contradicting  afterwards ;  and  this  fact  I  am 
perfectly  certain  of,  that  without  being  interro- 
gated as  to  the  particular  point,  that  the  witness 
did  say  he  believed  Scott  was  on  the  ground.  I 
don't  think  it  is  proper,  therefore,  for  them  to 
take  up  this  question  now,  or  at  any  time,  for 
the  purpose  of  contradicting  Kline,  who  was 
their  witness  for  that  purpose. 

Mr.  Stevens.  In  the  examination-in-chief  on 
page  93,  the  witness  says,  "they  were  armed 
with  guns,  &c."  (He  reads  from  the  notes.)  Then 
on  page  106  is  the  commencement  of  my  ques- 
tion, "At  Lancaster  you  stated  that  you  saw," 
(he  reads  from  notes.)  That  is  the  testimony  of 
the  witness  with  regard  to  the  entire  and  abso- 
lute certainty  of  the  witness,  that  Harvey  Scott 
was  present  at  that  time.  I  want  to  prove  this 
.is  all  false. 

Judge  G-rier.  It  having  been  a  matter  stated 
in  the  examination-in-cnief. 

Mr.  Brent.  The  question  does  not  bring  it 
out  on  the  part  of  the  prosecution. 

Judge  Grier.  The  man  was  giving  a  narra- 
tion of  facts. 

Mr.  Brent.  At  that  time,  he  had  finished  his 
narrative,  and  was  responding  to  questions.  He 
was  speaking  of  the  negroes  generally,  and  the 
question  was,  what  were  these  negroes  armed 
with?    He  says,  with  guns,  clubs,  &c.  (Reads.) 

There  was  no  examination  as  to  Harvey  Scott's 
being  there,  in  particular.  Afterwards,  as  the 
cross-examination,  pp.  104-5,  he  says  that  he  was 
there.  We  want  to  call  attention  to  that  fact, 
and  to  submit  the  proposition,  whether  if  that  is 
of  a  collateral  matter,  which  the  Court  has  de- 
cided so  collateral  that  it  could  not  be  introduced 
by  the  defence,  and  then  to  prove  the  alibi ;  then 
it  matters  not,  whether  the  fact  came  out  in  ex- 
amination-in-chief, or  in  cross  examination.  If 
it  be  immaterial  matter,  I  dont  think  it  can  be 
asked.  But  in  this  case,  the  United  States  did 
not  asked  questions  to  ascertain  whether  Harvey 
Scott  was  there ;  the  witness  volunteered  to 
state  it. 

Judge  Grier.  That  cannot  be  called  colla  teral 
matter  which  the  witness,  in  the  examination-in- 
chief,  gave  as  part  of  the  very  res  gestce.  It  may  be 
collateral,  as  for  instance,  suppose  he  had  in  the 
examination-in-chief,  said  certain  persons  stood 
behind  a  certain  tree,  and  did  so  and  so,  could 
not  the  other  party  show  there  was  no  such  tree 
there  ?    It  was  a  mistake  in  fact,  or  a  willful 


mistake.  If  it  is  stated  as  part  of  the  res  gestce 
you  have  a  perfect  right  to  test  either  his  verac- 
ity or  memory,  and  you  can  show  that  he  has 
made  a  mistake ;  or  told  what  was  not  true ;  that 
will  be  for  the  jury.  I  think  the  testimony  has  a 
right  to  be  gone  into  under  the  circumstances. 

Mr.  Stevens.  Edward,  state  where  Harvey 
Scott  was,  at  the  time  I  have  mentioned  ? 

WItness.  I  knew  him  to  go  up  stairs  into  my 
garret,  on  the  night  of  the  10th  between  eight 
and  nine  o'clock.  I  buttoned  the  door  after  he 
went  up,  on  the  outside,  from  the  stairs  in  the 
room,  where  the  stairs  started  from,  and  knew 
nothing  more  about  him  till  morning.  A  quarter 
of  an  hour  before  sun-up,  I  unbuttoned  it,  and 
called  to  him  to  come  down,  and  he  answered, 
and  came  down  directly  after,  and  made  a  fire  in 
my  house.  Immediately  after  he  made  the  fire, 
he  went  for  a  cow  in  a  two-acre  lot ;  he  brought 
her  down  between  my  garden  and  shop,  where 
we  generally  milk  her ;  there  is  a  flat  piece  of 
ground  there  ;  he  left  the  cow,  and  went  into  the 
shop,  and  went  to  work.  He  worked  till  break- 
fast time,  and  we  had  our  breakfast,  and  he  went 
back  with  me  into  the  shop,  and  was  not  out  of 
my  employ  from  the  shop  all  that  day. 

Question.    Are  you  a  blacksmith  ? 

Answer.  I  am,  and  he  came  there  to  serve  an 
apprenticeship  with  me ;  he  blowed  and  struck 
for  me  all  that  day,  the  11th. 

Question.  How  lar  is  your  house  from  Par- 
ker's ? 

Answer.  I  would  suppose  about  three  miles, 
I  never  knew  whether  it  was  measured. 

Question.  Who  was  at  your  house  besides 
yourself  that  night  ? 

Answer.    My  son-in-law,  John  S.  Cochran. 

Question.  Was  there  anybody  else  there  that 
night  you  buttoned  the  door  ? 

Answer.  There  was  two  of  my  grand-daugh- 
ters slept  over  the  room  from  where  the  stairs 
started  into  the  garret — he  had  to  come  in  that 
room  to  go  into  the  garret. 

Cross-examined. 

Mr.  Ludlow.    Was  there  a  window  in  the 
room  where  Harvey  Scott  slept  ? 
Answer.  Yes. 

Question.  How  high  is  it  from  the  shed  or 
the  ground  ? 

Answer.  I  would  suppose  between  eight  and 
nine  feet  down  to  the  roof  of  the  shed. 

Question.  How  far  is  it  from  the  eave  of 
that  shed  to  the  ground  ? 

Answer.  I  suppose  at  one  corner  not  more 
than  three  or  three  and  a  half  feet. 

Question.  Could  a  man  of  ordinary  size  get 
out  of  that  window  on  to  the  shed,  and  from  the 
shed  to  the  ground  ? 

Answer.  It  might  be  possible  for  that  man 
to  get  out  of  the  window,  by  dropping  himself, 
but  he  would  not  reach. 

Question.  If  a  man  of  five  feet  were  to  get 
out  of  the  window  and  hang  to  the  sill,  how  far 
would  his  feet  be  from  the  shed  ? 

Answer.  I  don't  know  what  length  his  arms 
would  be,  I  suppose  he  could  not  touch  the  roof. 

Question.  Would  he  not  be  a  short  distance 
from  it  ? 


UNITED  STATES  V.  HAN  WAY. 


137 


Answer.    Not  far. 

Question.    Is  there  any  difficulty  in  going 
from  that  roof  to  the  ground  ? 
Answer.  No. 

Question.  Do  you  know  whether  Harvey 
Scott  was  in  or  out  of  the  room,  from  the  time 
you  buttoned  the  door  the  evening  previous,  till 
a  little  before  sun-up  the  next  morning  ? 

Answer.    That  I  don't  know  any  thing  about. 

Question  Could  he  not  have  been  absent 
from  that  room  and  you  know  nothing  about 
if? 

Answer.    It  is  possible  he  might. 

Mr.  Read.  How  could  he  have  got  back  there 
so  as  to  be  there  in  the  morning  ? 

Answer.  He  could  not  possibly  have  got  back 
without  some  person  to  help  him. 

Judge  Grier.  How  do  you  identify  that  par- 
ticular night  and  morning,  with  the  night  of  the 
10th  and  morning  of  the  11th,  when  this  murder 
was  committed  ? 

Answer.  I  recollect  that  from  a  circumstance 
that  took  place  on  the  evening  before  this ; 
Harvey  Scott  and  J.  S.  Cochran  went  out  to 
Penningtonville,  on  the  evening  of  the  10th,  to  a 
Btore,  and  they  came  back  together.  It  was  then 
near  about  the  time  I  intended  to  go  to  bed. 
J.  S.  Cochran  called  me  into  the  room  to  look 
at  goods  he  had  bought,  and  Harvey  Scott  was 
in  the  room  with  me,  and  all  three  were  looking 
at  them.  From  that  I  charged  my  memory  with 
that  evening. 

Question.  When  did  you  first  hear  the  next 
day  of  the  transaction  ? 

Answer.  The  next  morning  there  was  a  man 
brought  me  a  quarter  of  veal  just  after  we  were 
done  breakfast,  Stocker  Coates  was  his  name,  and 
Harvey  Scott  and  me  were  standing  in  the  yard, 
after  breakfast,  and  Stocker  Coates  said  he  hadn't 
weighed  the  veal,  and  if  I  would  have  m}T 
steel-yards  brought  up  to  the  house  he  would 
weigh  it,  and  he  sent  Harvey  Scott  for  them,  and 
he  brought  them  up  and  we  weighed  it,  and  the 
value  I  gave  him  credit  for — we  had  dealings  in 
the  shop — from  these  circumstances  I  charged 
my  mind  with  it. 

Judge  Grier  Did  you  hear  then  any  thing 
about  the  affair  at  Christiana  ? 

Answer.  Not  till  a  little  while  afterwards. 
William  McClyman  came  along  and  told  us  about 
the  affray  just  after  that. 

Question.  Are  you  sure  that  the  bringing  of 
the  veal  there  on  that  day  and  the  news  of  the 
murder  were  on  the  same  day. 

Answer.  The  veal  and  the  news  of  the 
murder  was  on  the  same  day. 

Cross-examined. 

Mr.  Cooper.  You  made  an  entry  in  the  book  ? 
Answer.    Yes,  sir. 

Question.    Have  you  the  book  with  you  ? 

Answer.  No,  sir,  I  didn't  bring  it  with  me. 
It  is  the  book  I  keep  my  accounts  in.  It  was  on 
the  11  of  September.    It  was  on  Thursday. 

Mr.  Brent.  When  did  you  first  call  your 
mind,  particularly  to  the  fact  that  you  found 
Hai-vey  Scott  there  the  next  morning?  When  did 
you  first  hear  about  it  ? 

Answer.    On  Thursday. 

18 


Question.  You  then  recollected  you  had 
fastened  him  up  at  night  and  let  him  out  in  the 
morning  ? 

Answer.  Yes. 

Question.  Your  attention  was  turned  to  it  on 
Thursday  ? 

Answer.  Yes-  William  McClyman,  that 
hauled  bark  from  J.  Gilfallan's,  was  up  to  Pen- 
ningtonville that  day,  and  came  along  back,  and 
got  to  telling  us  about  the  riot.  Harvey  Scott 
and  I  were  in  the  shop — and  Harvey  Scott  said, 
I  am  a  nigger  out  of  that  scrape. 

Question  Did  he  ask  where  Parker's  house 
was  ? 

Answer.  Yes  ;  he  asked  in  what  part  of  the 
country  it  was  located — and  he  didn't  appear  to 
know  any  thing  about  it — he  asked  me  after- 
wards about  it — where  the  brick  mill  was. 

Question.  He  asked  more  than  once  ? 

Answer.  Yes ;  several  times.  They  did  not 
take  him  from  my  house  till  the  following  Satur- 
day— it  was  at  the  shop  they  took  him. 

Judge  Grier.  At  the  time  of  his  arrest  did 
you  recur  to  the  fact  that  you  had  shut  him  up 
at  night,  and  he  was  there  in  the  morning  ? 

Answer.  I  began  to  recollect,  at  the  time, 
Wm.  McClyman,  told  us  there  had  been  a  riot 
on  Thursday,  and  after  hearing  him  say,  I  am  a 
nigger  out  of  that  scrape,  I  began  to  recollect 
where  he  was,  and  whether  at  my  house  or  not, 

Mr.  Bkent  It  was  on  Thursday  you  began  to 
recollect  it  ? 

Answer.  Yes. 

Question.  Didn't  you,  at  Lancaster,  say  you 
first  had  your  attention  called  to  it  on  the  Satur- 
day following  ? 

Answer.  I  don't  know  whether  I  did  or  not — 
I  don't  know  that  I  did. 

Question.  You  were  examined  at  Lancaster 
before  Alderman  Beigart  ? 

Answer.  Yes. 

Question.  I  will  read,  and  you  will  see  if  you 
recollect  this  statement — "The  Saturday  after, 
I  first  recollected  that  I  buttoned  him  up  that 
night," 

Answer.  I  must  have  been  misunderstood. 

Question.  You  think  you  didn't  say  it  was 
Saturday  ? 

Answer.    I  think  I  did  not, 

Question.  At  what  time  of  day  did  you  un- 
button this  door? 

Answer.    A  quarter  of  an  hour  before  sun  up. 

Question.    Did  you  look  at  the  sun  ? 

Answer.  No,  sir,  I  am  not  certain  about  that ; 
it  was  about  that  time. 

Question.  You  never  unbuttoned  the  door  to 
let  him  out  until  after  sun-up? 

Answer.    Likely  I  did. 

Question.  Why  do  you  recollect  it  was  a 
quarter  of  an  hour  of  sun  up  ? 

Answer.  I  cant  tell  the  reason — I  recollect  it. 
I  called  myself  to  recollect  to  know  something 
about  that  morning;  what  time  it  was  when  McCly- 
man's  told  us  of  the  riot,  then  I  recollected. 

Question.  How  often  before  that  had  you  un- 
buttoned that  door  in  the  morning  to  let  him  out  ? 

Answer.  I  could  not  say ;  I  have  done  it  a 
half  a  dozen  times  or  more  before. 


138 


TREASON  CASES. 


Question.  How  long  had  he  been  sleeping  in 
that  room  ? 

Answer.  All  the  time  he  was  with  me ;  I 
could  not  say  how  long  it  was  ;  he  had  been  out 
harvesting  sometimes. 

Question.  How  long  had  your  grand-daughters 
been  there  ? 

Answer.    For  two  weeks. 

Question.  Every  night  while  they  were  there, 
did  you  fasten  that  door  at  night,  and  open  it  in 
the  morning  ? 

Answer.  I  cant  say ;  sometimes  they  buttoned 
it  themselves  ;  I  generally  opened  it  in  the  morn- 
ing myself. 

Question.  Didn't  you  say,  you  always  opened 
it  in  the  morning  ? 

Answer.    I  cant  say  ;  that  time  I  recollect  it. 

Mr.  Stevens.  By  whom  were  you  called  to 
button  it  that  night  ? 

Answer.  One  of  my  grand-daughters,  who  is 
in  the  city  now. 

Mr.  Cooper.  How  come  she  to  call  you  that 
evening  ? 

Answer.  She  had  gone  to  bed  before  the 
black  man  went  up  that  evening. 

Question.  Were  you  down  stairs  when  she 
called  you  ? 

•  Answer.  No,  sir  ;  I  was  in  a  room  adjoining 
hers,  under  where  this  man  slept ;  I  came  out  of 
my  room  and  went  into  hers  to  do  it. 

Mr.  Brent.  If  she  could  call  you  why  didn't 
she  do  it  herself  ? 

Answer.  I  dont  .suppose  she  liked  to  get  up 
after  she  had  .stripped. 

Question.  Were  you  in  your  bed-room  when 
she  called  ? 

Answer.    I  was. 

Question.    In  bed  ? 

Answer.  I  think  not,  I  am  not  certain ;  it 
was  somewheres  about  the  time  I  had  got  ready 
to  go  to  bed. 

Question.    Was  it  warm  there  ? 

Answer.  Not  very  warm  ;  it  was  in  Septem- 
ber. 

Question.  That  was  the  only  reason  for  it, 
that  you  have  given  ? 

Answer.    I  dont  know  any  other  reason. 

Question.  He  had  passed  through  her  room 
after  she  had  retired  ;  she  had  gone  to  bed  when 
he  came  back  ? 

Answer.  She  had  gone  to  bed  when  he  went 
up  stairs.  I  don't  know  whether  she  had  before 
he  came  back  from  Penningtonville,  or  not. 

Mr.  Ludlow.    Your  bed-room  and  his  join  ? 

Answer.  My  bed-room  and  that  where  my 
grand-daughters  slept,  were  on  the  same  floor. 
The  stairs  from  the  lower  story  came  up  into  the 
room  where  they  slept,  and  you  had  to  come  up 
those  stairs.  I  passed  through  their  room  into 
another  room  at  the  end  of  the  house,  and  right 
out  of  their  room  he  goes  up  into  the  garret. 

Mr.  Stevens.    It  was  a  two-story  house  ? 

Answer.  Yes. 

Mr.  Cooper.    Was  there  a  garret  above  the 
second  story  ? 
Answer.  Yes. 

Question.  You  stated  at  first  that  the  negro 
slept  in  the  garret  ? 


Answer.    So  I  say. 

Question.  He  didn't  sleep  on  the  same  floor 
with  you? 

Answer.  No,  sir,  he  slept  immediately  above 
where  I  did 

John  S.  Cochran,  sworn. 

Question.  Are  you  the  son-in-law  of  Mr. 
Carr? 

Answer.  Yes. 

Question.  Where  were  you,  and  where  was 
Harvey  Scott  on  the  evening  of  the  10th  of  Sep- 
tember last,  and  tell  all  you  know  about  it  ? 

Answer.  I  was  at  home  on  the  evening  of  the 
10th,  that  is,  in  part  of  John  Carr's  house. 
Harvey  Scott  and  I  went  to  Penningtonville  that 
evening  after  supper.  I  suppose  a  little  while 
after  dark,  and  returned  home  about  eight 
o'clock,  and  the  last  I  saw  of  Harvey  Scott,  was 
going  up  into  his  bed-room — that  was  in  the  gar- 
ret of  the  house  that  Mr.  Carr  lives  in  ;  and  in 
the  morning  when  I  got  up,  I  seen  him  just 
going  off  the  end  of  the  porch. 

Question.    What  time  was  that  ? 

Answer.  A  little  before  sun  up.  I  think  I 
seen  him  eat  his  breakfast,  and  seen  him  after 
breakfast,  off  and  on  until  about  eigkt  o'clock. 

Question.    Where  did  you  go  then  ? 

Answer.  Up  to  my  shop  where  I  work  only 
a  quarter  of  a  mile  from  the  house  ;  then  I  didn't 
see  any  thing  more  of  him  till  about  dinner  time. 
That  is  about  all  I  know. 

Question.  You  saw  him  going  off  the  porch 
before  sun-rise  ;  what  day  of  the  month  was  that  ? 

Answer.    On  the  eleventh. 

Question.  How  do  you  know  it  was  the  10th 
that  you  went  to  Peningtonville  ? 

Answer.  Hearing  of  this  murder  the  next  day 
I  traced  my  memory  back  and  I  knew  it  was  the 
10th. 

Question.  You  heard  of  this  murder  next 
day? 

Answer.  Yes. 

Question.  You  said  you  went  to  Penington- 
ville ;  what  for  ? 

Answer.    I  got  some  things  at  tlie  store. 
Question.    Have  you  a  bill  of  those  things  ? 
Answer.    Yes,  sir.    (Produces  the  bill.) 
Question.    What  is  the  date  of  it  ? 
Answer.    September  10th. 
Cross-examined. 

Mr.  Cooper.    When  did  you  get  this  bill  ? 
Answer.    On  the  evening  of 'the  10th  of  Sep- 
tember. 

Question.    In  whose  hand-writing  is  it? 

Answer.  I  am  not  able  to  say.  It  is  either 
William  Patrick's  or  Mr.  David  Welsh's,  it  was 
one  of  the  storekeepers. 

Question.    You  didn't  pay  the  cash  ? 

Answer.    No,  sir,  it  was  charged. 

Question.  Has  this  bill  been  in  your  posses- 
sion ever  since  ? 

Answer.  Yes,  sir.  When  I  don't  pay  the 
cash  !  just  get  a  bill  from  him,  and  I  had  some 
other  dealings. 

Question.  You  have  carried  this  m  your 
pocket  ever  since  ? 

Answer.    Yes,  in  my  pocket  book 

Question.    Did  you  show  it  at  Lancaster  ? 


UNITED  STATES  V.  HANWAY. 


139 


Answer.  No. 

William  McClynum  is  called  and  sworn. 

Mr.  Stevens.  "Will  you  be  so  good  as  to  state 
"where  you  were  on  the  11th  of  September,  when 
this  affair  took  place  at  Parker's,  and  any  thing 
that  you  know  about  where  Harvey  Scott  was 
that  mooing. 

Answer.  About  the  time  the  riot  took  place 
I  was  at  home.  I  left  home  at  half-past  six 
o'clock,  and  I  went  to  Penningtonville  to 
take  a  load  of  bark.  I  was  near  Cochrans- 
yille,  three  miles  south  of  Penningtonville. 
I  went  there  to  a  tannery,  and  drove  up 
where  Mr.  Carr  lived.  I  observed  George  "Wash- 
ington Harvey  Scott ;  he  was  at  work  there, 
and  the  reason  I  observed  it  I  had  been  up  some 
evenings  before,  and  George  had  struck  a  man 
with  a  hammer,  and  that  man  told  me  he  was 
going  to  prosecute  George,  and  George  told  me 
he  would  run  away.  When  1  went  up  that  morn- 
ing I  saw  George  at  work.  Thinks  I  he  isn't 
gone  yet.  I  came  to  get  another  load,  it  was 
Floods'  Hotel  that  I  went  in,  and  got  a  glass  of 
whiskey  and  paid  for  it.  It  was  between  five 
and  ten  minutes  past  seven  o'clock.  I  started 
with  the  intention  of  making  three  trips.  I 
went  about  three-quarters  of  a  mile  south  of 
Penningtonville  I  think,  and  then  drove  on 
to  McCullan  &  Reynolds'  and  unloaded  my 
bark,  and  one  of  their  agents  told  me  there  was 
one  man  killed  and  another  wounded,  and  there 
was  a  great  quantity  of  colored  men  there. 
"When  I  was  going  home  it  was  about  nine 
o'clock — it  was  not  far  off.  I  told  Mr.  Carr  of 
the  riot,  and  when  he  heard  it,  says  he,  Nick  is 
out  of  that  scrape.  Mr.  Carr  says,  I  shall  clear 
him  of  that. 

Mr.  CoorER.  "What  time  was  it  that  you 
spoke  of  the  riot. 

Witness.  It  was  between  seven  and  eight 
o'clock.  I  had  to  unload  the  bark.  I  think  it 
was  about  that  time. 

Mr  Brent.  You  were  twice  at  Carr's,  I  be- 
lieve. 

Answer.  Yes  sir,  that  is  all.  I  passed  there 
a  second  time  going  up. 

Question.  The  first  trip,  you  heard  of  the 
news. 

Answer.    No,  sir,  not  when  I  was  going  up. 
Question.    It  was  seven  o'clock. 
Answer.    Yes,  sir. 

Question.    The  second  time  you  went  there, 
you  came  back. 
Answer.    Yes,  sir. 

Mr.  Cooper.  How  do  you  know  it  was  the 
twelfth. 

Answer.    It  was  the  eleventh. 

Question.    It  was  the  eleventh,  I  mean. 

Answer.  I  was  carrying  bark  for  another 
man,  and  I  charged  him  on  that  day. 

Mu.  Brent. — How  can  you  tell  you  saw 
Harvey  Scott  on  the  first  trip,  might  you  not 
have  seen  him  on  the  second  trip  when  you  return- 
from  Penningtonville.  What  was  there  that 
fixes  it  on  your  mind  that  it  was  in  the  morning 
when  you  first  went  there,  rather  than  at  nine 
o'clock. 


Answer.  He  had  told  me  about  a  few  even- 
ings before  that  he  would  run  off. 

Question.  You  state  you  considered  he  hadn't 
done  it. 

Answer.  Yes,  sir,  says  I,  he  had'nt  done  it 
yet. 

Question.    You  didn't  stop  as  you  went  up? 
Answer.    No,  sir. 

Question.    How  was  it  you  saw  him? 

Answer.  He  was  blowing  the  bellows  in  the 
shop  for  Carr. 

Question.  How  often  did  you  pass  the  shop 
before  that,  every  day? 

Answer.  I  generally  run  two  trips  only 
about  two  days  in  the  week,  and  then  I  was 
home  on  the  farm. 

Question.  How  long  had  you  been  running 
these  trips? 

Answer.    For  two  years  :  twice  a  week. 

Question.  Every  morning  you  passed  by 
Carr's  ? 

Answer.  Yes,  but  I  hadn't  been  up  for  some 
time  before  that. 

Question.    How  long  was  it? 

Answer.    About  two  days. 

Question.  How  long  did  Scott  reside  in  that 
neigborhood  ? 

Answer.  About  the  first  of  March  I  saw  him 
there. 

Question.  Did  he  at  the  time  of  the  conver- 
sation make  any  inquiries  about  Parker's  house 
and  the  brick  mill? 

Answer.  No,  sir.  I  do  not  know  where 
Parker's  house  was. 

Mr.  Stevens.    He  said  nothing  of  the  kind  ? 

Mr.  Brent.    What  did  he  say  ?    That  is  all. 

Mr.  Thomas  Liston  is  called  and  affirmed. 

Mr.  Stevens.  Do  you  know  the  general  cha- 
racter for  truth  and  veracity  of  Henry  H.  Kline  ? 

Answer.    I  have  heard  it  spoken  of,  sir. 

Question.    "What  is  it? 

Answer.    I  should  consider  it  bad. 

Mr.  Ludlow.  Did  you  ever  have  any  dis- 
pute with  Mr.  Kline? 

Answer.    No,  sir. 

Question.    Never,  on  any  occasion? 

Answer.    No.  sir. 

Question.  When  did  you  hear  his  character 
spoken  of  ? 

Answer.  I  have  known  Mr.  Kline  for  ten  or 
twelve  j^ears,  sir. 

William  Hopkins  is  called  and  sworn. 

Mr.  Stevens.    Do  you  know  Henry  H.  Kline? 

Answer.    I  do  sir  by  sight,  not  personally. 

Question.  Do  you  know  his  general  charac- 
ter for  truth  and  veracity? 

Answer.    Yes,  sir. 

Question.    What  is  it? 

Answer.  It  is  generally  bad  what  I  have 
heard  of  it. 

Mr.  Ludlow.  Did  you  ever  have  any  diffi- 
culty with  Mr.  Kline? 

Answer.    Never  in  my  life. 

Question.  Had  you  a  difficulty  with  him  at 
Christiana? 

Answer.    No,  sir. 

Mr.  Brent.    Were  you  up  at  Christiana? 


140 


TREASON  CASES. 


Anwser.    I  was. 

Question.    Who  did  you  go  up  with? 
Answer.    I  went  up  with  the  punce. 
Question.    Did  you  see  Kline  maltreated  in 
a  room? 

Answer.  I  seen  him  have  a  scuffle  with  a 
man  by  the  name  of  Alberti.  He  had  a  fight  up 
there. 

Question.    You  took  no  part  in  it? 

Answer.    No,  sir. 

James  Smith  is  called  and  sworn. 

Mr.  Stevens.  Do  you  know  the  character  of 
Henry  H.  Kline,  as  far  as  regards  truth  and  ve- 
racity? 

Answer.    As  far  as  I  have  heard. 

Question.    Do  you  know  it  from  reputation? 

Answer.    I  do  from  what  I  have  heard. 

Question.    What  is  that  ? 

Answer.  I  have  always  considered  it  to  be 
bad.    Not  cross-examined. 

William  Nutt  is  called  and  affirms 

Mr.  Stevens.  How  long  have  you  known 
Henry  H.  Kline? 

Answer.    About  twelve  or  fifteen  years. 

Question.  Do  you  know  his  general  charac- 
ter for  truth  and  veracity? 

Answer.    Yes,  sir,  it  is  bad. 

Mr.  Ludlow.    Who  subpcened  you? 

Answer.    Indeed  I  can't  say. 

Lewis  Cooper  is  called  and  affirms. 

Mr.  Stevens.  Will  you  be  so  good  "as  to  say 
whether  you  went  to  the  ground  or  to  Parker's, 
the  morning  of  this  affray,  and  what  you  saw 
there? 

Answer.  I  did  go  to  the  ground  that  morn- 
ing. When  I  went  there  I  saw  first,  Joseph 
Scarlet  in  company  with  Dickerson  Gorsuch. 
Dickerson  Gorsuch  was  sitting  by  the  road  side, 
apparently  very  badly  wounded,  and  Joseph 
Scarlet  was  in  attendance,  and  seemed — 

Mr.  Cooper.    Not  what  he  seemed. 

Witness.  Well,  he  appeared — 

Mr.  Brent.  Not  what  he  appeared. 

Witness.  Well,  he  was  holding  his  head  and 
keeping  the  sun  from  shining  on  him,  and  so  on. 
I  cannot  say  much  more  in  regard  to  that.  I 
inquired  where  those  men  were  that  were  most 
wounded.  He  pointed  to  Dickinson,  and  said 
he  was  the  man,  and  there  was  another  one  he 
said  that  was  dead,  his  father.  I  think  I  pro- 
posed that  we  should  take  him  up  in  a  Dearborn 
that  he  might  be  cared  for. 

Judge  Grier.    Whose  Dearborn. 

Witness.  My  own,  and  I  went  there  with  it 
for  that  purpose,  for  taking  him  where  he 
should  be  cared  for.  Scarlet  told  me  that  Levi 
Pownell  had  given  his  consent  he  should  be 
taken  to  his  house.  I  then  proposed  he  should 
be  loaded  into  the  Dearborn  immediately,  and 
in  a  few  minutes  he  desired  to  be  lifted  up  and 
put  into  it.  Scarlet  got  in  on  one  side,  and  I  on 
the  other.  We  took  him  to  Levi  Pownell' s  house  ; 
we  assisted  in  getting  him  out  there,  and  on  to 
a  bed.  The  Doctor  Avas  there  at  this  time,  and 
he  assisted  in  dressing  his  wounds,  and  making 
him  as  comfortable  as  we  could.  I  then  asked 
him  if  we  had  done  everything  we  could  do  for 
him,  and  if  there  were  white  men    on  the 


ground  assisting  the  blacks  against  them.  He 
said  there  was  not. 

Mr.  Brent.    "Who  said  that  ? 

Answer.    Dickinson  Gorsuch. 

Question.    That  same  day  ? 

Answer.  That  same  day.  I  asked  him  if  he 
knew  if  there  were  any  white  men  on  the  ground. 
No,  he  said,  shaking  his  head,  there  was  not.  I 
immediately  left  there  and  went  back  on  the 
ground  again.  In  the  first  place  I  didn't  go  over 
to  the  house. 

Mr.  Cooper.    I  do  not  understand  this. 

Mr.  Stevens.  I  don't  want  this  myself,  the 
Court  made  the  inquiry,  and  wished  to  know  if 
the  neighbors  sympathised  with  them,  and  to 
show  that  every  thing  was  done  that  could  be 
done  in  the  neighborhood. 

Judge  Grier.  I  am  very  glad  to  hear  it,  be- 
cause the  transaction  altogether  had  reflected 
great  discredit  on  the  neighborhood.  I  am  indi- 
vidually very  much  pleased  to  hear  it,  for  it 
shows  there  were  some  individuals  disposed  to 
behave  properly  and  save'  the  character  of  the 
country. 

Question.  Did  you  not  ask  Dickinson  Gorsuch 
whether  he  had  made  such  a  statement. 

Mr.  Stevens.  We  do  not  desire  him  to  say 
that,  because  Mr.  Dickinson  Gorsuch  has  said 
nothing  of  it. 

Mr.  Read.  If  your  Honors  please,  we  shall 
say  nothing  about  it,  because  Dickinson  Gorsuch 
said  nothing  but  what  was  perfectly  true. 

Mr.  Brent.  Every  thing  he  said  was  true, 
and  that  is  the  statement  here. 

Judge  Grier.    You  can  go  on. 

Witness.  We  then  saw  the  dead  body  of 
Edward  Gorsuch,  and  spoke  to  some  bystanders 
that  were  there  in  relation  to  it,  and  thought  it 
was  time  it  was  removed  from  there.  I  was  in- 
formed that  Esquire  Pownell  had  an  inquest  out, 
and  they  were  waiting  for  a  report.  I  spoke  to 
the  Squire  afterwards.  He  said  they  could  not 
report  there,  and  bis  body  would  have  to  be  re- 
moved. I  inquired  where  they  would  take  it. 
They  said  they  would  take  it  to  Christiana.  As 
there  was  no  other  conveyance,  and  no  machine 
for  to  carry  him  along,  my  dearborn  was  again 
brought  forward  to  take  the  corpse  to  Christiana. 
I  took  it  over,  and  after  I  arrived  there  I  saw 
Henry  Kline,  at  least  the  person  that  was  told  to 
me  to  be  that  man,  and  he  was  the  Marshal,  and 
so  on.  My  attention  was  first  taken  to  him  by 
his  declarations  of  two  men  yet  being  missing, 
and  that  there  was  no  account  of.  I  went  up  to 
him,  and  he  said,  if  those  men  had  only  have 
minded  what  he  had  told  them,  these  things 
would  not  have  happened.  He  said  he  had  called 
on  them  three  different  times,  demanding  them 
to  come  away.  They  would  not  come,  and  one 
Hanway,  and  that  man  Lewis,  (was  his  language) 
declared  that  these  men  could  not  be  taken  with- 
out loss  of  life,  or  bloodshed,  or  something  of 
that  land ;  and  when  they  said  that,  he  said  he 
had  called  out  to  his  men  twice  and  they  would 
not  come  away.  He  went  away  from  the  spot  he 
said,  and  he  had  only  got  up  into  the  woods  a 
piece  before  the  shooting  commenced.  I  do  not 
think  I  paid  any  further  attention  to  his  sayings, 


rXITED  STATES   V.  HANWAY. 


141 


I  left  him  and  Trent  back  into  the  house.  The 
inquest,  or  the  persons  that  were  called  upon 
the  inquest,  did  not  come  there  agreeable  to 
appointment,  and  they  had  to  get  up  another 
inquest,  or  at  least  a  part  of  one.  to  finish  out, 
instead  of  those  who  didn't  attend. 

Ma.  Stevens.    Were  you  one  of  them. 

Witness.  I  was  one  of  the  number  that  was 
called  upon  to  take  the  place  of  some  of  the 
absent  ones.  When  the  inquest  had  reported,  I 
proposed  to  some  of  them,  that  there  should  be  a 
respectable  company  of  persons  to  accompany 
the  corpse  home  to  Maryland  the  next  day. 
After  some  deliberation  it  was  agreed  upon  that 
the  corpse  should  be  taken  the  next  morning, 
and  this  company  (I  was  one  of  the  persons 
that  was  picked  upon  to  accompany  the  corpse 
home.)  I  went  home  to  make  preparation  to  go 
the  next  morning.  But  the  next  morning  I 
went  round  by  Levi  PownelTs  to  see  how  Dickinson 
Gorsuch  was,  so  that  I  might  report  his  condi- 
tion when  I  got  to  Maryland.  I  then  went  to  Dr. 
Thos.  Pierce,  who  was  in  the  house,  I  do  not 
recollect  particularly  the  conversation,  but  he 
commenced  with  speaking  of  the  circumstances, 
and  he  spoke  of  Kline.  He  said  he  was  a  mon- 
strous poor  thing,  or  words  implying  it.  If  it 
was  not  monstrous  it  was  something  that  con- 
veyed the  same  meaning.  He  said  he  had  no 
confidence  at  all  in  him,  and  that  he  ran  or  left,  at 
the  first  intimation  of  danger.  As  my  time  was 
not  very  long,  and  there  was  not  much  to  spare, 
we  left  there,  and  on  our  road  to  the  creek  he 
related  to  me  the  circumstances. 

Mr.  Stevens.    How  did  you  go  to  Christiana  ? 

Answer.    In  the  Dearborn. 

Question.    Who  were  with  you? 

Answer.  Dr.  Thos.  Pierce  and  a  man  to 
drive,  he  spoke  of  it,  he  said  it  was  one  of  the 
most  imprudent  acts  his  uncle  ever  undertook,  in 
fact  it  was  the  most  imprudent  one  he  ever  saw 
in  his  life.  I  do  not  recollect  the  particulars, 
but  he  said  more  particularly,  that  Kline  had 
left  them,  and  that  he  called  for  his  uncle  to 
come  away,  his  uncle  came  out  a  marked  dis- 
tance, he  took  it  to  be  ten  yards,  that  far  towards 
him,  and  he  saw  his  uncle's  countenance  change 
suddenly,  and  he  turned  back  and  says,  my  pro- 
perty is  here,  and  I  will  have  it  or  perish  in  the 
attempt.  I  thought  it  very  rash  for  my  uncle  to 
say  so,  and  as  soon  as  he  had  said  this  there 
came  up  a  bright  yellow  negro,  one  of  his  own 
slaves,  and  shot  him.  I  cannot  say  whether  he 
shot  him,  but  when  he  came  up  to  my  uncle  with 
his  arm  extended,  he  fell  dead.  When  I  saw  my 
uncle  fall  it  was  time  to  leave,  and  to  my  under- 
standing he  got  into  the  road  somewhere,  and 
saw  Hanway,  and  runs  to  him  and  took  hold  of 
his  saddle  behind,  Hanway  keeping  him  between 
him  and  the  negros.  I  understood  him  to  hold 
by  the  saddle  of  the  skirt  or  something  of  that 
kind  to  assist  in  his  flight, 

Mr.  G-.  L.  Ashmead.  Will  your  honors  allow 
Dr.  Pierce  to  be  present  during  the  examination 
of  this  witness  ? 

Mr,  Stevens.  If  the  Court  please,  the  object 
is  to  keep  them  out  so  they  should  not  hear  what 
has  been  said. 


Mr.  G.  L.  Ashmead.  The  witness  is  stating 
a  general  conversation,  and  it  is  but  fair  that  he 
should  have  an  opportunity  of  being  present  to 
hear  what  is  said  by  this  witness,  so  that  he  may 
be  enabled  to  correct  any  mistake  that  may  be 
made:  we  only  wish  that  fairness  and  justice  may 
be  done. 

Mr.  Stevens.  I  suppose  Dr.  Pierce  can  tell 
the  facts  just  as  well  without  hearing  what  he 
has  to  contradict,  as  by  hearing  his  answers. 

Judge  Grier.  I  do  not  know  whether  Dr. 
Pierce  was  examined  as  to  having  stated  such 
matters. 

Mr,  Stevens.  We  asked  that  he  would  tell 
us  something  with  relation  to  Hanway,  and  not 
for  this  general  conversation. 

Mr.  G.  L.  Ashmead.  I  do  ask  it,  may  it 
please  the  Court. 

Mr.  Brent.  I  understand  the  reason  which 
excludes  witnesses  is,  that  where  there  are  more 
than  one,  so  that  there  is  a  combination,  so  that 
if  there  be  any  false  testimony  it  may  be  arrested. 
But  it  is  not  as  regards  one  witness,  whose  char- 
acter is  not  impeached  ;  and  it  does  not  seem  to 
me  right  that  he  should  not  have  an  opportunity 
of  hearing  what  is  said,  and  admitting  what  he 
recollects,  or  explaining  any  other  portions  of 
it. 

Judge  Kane.  Even  further,  to  suggest  in- 
quiries to  the  witness  which  might  bring  out  the 
absolute  fact. 

Judge  Grier.  You  have  a  right  to  have  the 
witness  present :  you  may  have  him  here.  If  the 
gentleman  is  not  presentf  we  cannot  search  all 
over  the  city  for  him. 

Witness.  I  said  he  seemed  to  convey  the 
idea  he  had  hold  of  a  stirrup  leather. 

Judge  Grier.    Did  the  doctor  say  this  ? 

Witness.  Yes,  sir,  and  kept  hold  of  Han- 
way's -horse,  and  kept  Hanway  between  him  and 
the  pursuers  ;  and  that  Hanway  put  up  his  hand 
and  motioned,  and  called  to  them  not  to  shoot, 
or  words  implying  this.  He  pointed  out  to  a 
place  where  Buley  had  lived,  and  so  on.  I  do 
not  recollect  as  there  was  much  more  said  in  re- 
gard to  this  point,  in  our  conversation  or  com- 
pany. When  I  got  to  Christiana,  I  there  learned 
that  there  had  been  another  delegation,  or  at 
least  another  arrangement  made  in  regard  to  the 
corpse,  and  it  had  been  taken  in  the  night  time 
and  we  were  too  late  to  accompany  the  corpse 
home.  Dr.  Pierce  got  in  the  fast  line  and  re- 
turned home,  and  I  retured  to  my  house. 

Mr.  Stevens.  Are  you  the  son-in-law  of  Eli- 
jah Lewis  ? 

Answer.    Yes,  sir. 

Question.  Yvill  you  be  so  good  as  to  state 
whether  in  that  neighborhood  constantly,  early 
in  the  morning,  that  the  neighbors  do,  or  do  not, 
blow  horns  to  call  their  people  to  breakfast,  and 
at  that  season  of  the  year,  and  at  that  hour  ? 

Answer.  At  that  season  of  the  year  it  is  the 
custom  of  all  farmers  to  call  their  hands  to 
breakfast  by  blowing  horns.  Those  horns  blow- 
ing at  this  particular  season  would  be  awhile  be- 
fore sunrise  till  an  hour  after  sunrise. 

Question.  How  far  do  you  live  from  Park- 
er's ? 


142 


TREASON  CASES. 


Answer.  By  the  road  I  think  it  is  a  mile  and  i 
a  half. 

Question.    But  straight  ? 
Answer.    It  would  be  about  a  mile. 
Question.    Tell  whether  you  heard  any  un- 
usual blowing  of  horns  that  morning. 
Answer.    I  did  not. 

Mr.  Brent.  Are  you  not  one  of  the  coroner's 
inquest,  and  one  who  examined  the  circumstances 
of  that  event 

Answer.  Yes. 

Question.  Was  not  Lewis  on  the  ground  be- 
fore the  body  was  removed? 

Answer.    I  didn't  see  him. 

Question.  What  time  did  you  get  there ;  it 
was  when  you  got  there  that  Scarlett  held  the 
head  of  Dickinson  Gorsuch  ? 

Answer.    Yes,  sir,  I  did. 

Question.  Did  you  remain  until  the  body 
was  removed  ? 

Answer.    I  did  not. 

Question.  You  did  not  see  the  body  when 
you  came  back,  after  being  away  three  hours  ? 

Answer.  No,  sir,  not  to  the  best  of  my  re- 
collection. 

Question.  When  you  got  to  Christiana,  was 
Kline  there  ? 

Answer.    Yes,  sir. 

Question.  Why  did  not  you  examine  Mr. 
Kline  ? 

Answer.  All  the  other  persons  who  had  been 
summoned  on  the  jury  beforehand  said  it  was 
not  necessary,  because  they  said  they  didn't  be- 
lieve what  he  would. say. 

Question.  Did  they  know  his  general  char- 
acter? 

Answer.    I  do  not  know. 

Question.  Why  would  not  they  believe  him 
who  was  a  stranger  with  them  ? 

Answer.  He  had  told  numerous  different 
tales. 

Question.  Then  I  understand  you,  although 
he  was  a  witness  to  this  transaction,  and  was  a 
stranger  to  those  jurors,  that  you  would  not  ex- 
amine him  as  a  witness,  on  the  ground  was  that 
he  had  told  different  tales. 

Answer.    That  was  the  general  belief. 

Question.  Is  this  your  name  signed  to  this 
iaquest? 

Answer.    It  is. 

Mr.  Brent.  I  here  will  now  read  the  inquest. 
(Reads.)  You  state  in  this  the  particulars  of  the 
transaction,  that  there  was  an  attack  made  about 
four  o'clock  in  the  morning,  upon  a  family  of 
colored  persons.  Had  you  any  evidence  before 
you, sworn  upon  oath  as  regards  that  information  ? 

Answer.  None,  except  those  who  were  on  the 
inquest. 

Question.    Who  caused  it  to  be  inserted  ? 

Judge  Grier.  How  did  you  make  an  inquest 
and  refuse  to  examine  witnesses  ?  I  want  to  un- 
derstand the  processes  in  that  country. 

Answer.  The  other  gentlemen  on  the  inquest 
seemed  to  have  a  knowledge  of  them. 

Mr.  Brent.  Was  any  one  of  them  sworn  as  to 
these  facts  you  have  stated  here? 

Answer.  I  do  not  know  that  they  were,  ex- 
cept the  Doctor. 


Question.    That  was  to  show  they  had  made 
a  post-mortem  examination. 
Answer.    Yes,  sir. 

Question.  Did  Mr.  Kline  offer  himself  as  a 
witness  as  to  the  facts  ? 

Answer.    Not  that  I  heard  of. 

Question.  Did  you  not  know  that  Elijah  Lewis 
saw  this  transaction  ? 

Answer.    I  did  not. 

Question.    Did  you  not  know  that  Castner 
Hanway  saw.  this  transaction" 
Answer.    I  did  not. 

Question.  Did  you  not  hear  some  of  the  jm-ors 
say  they  were  present  ? 
Answer.    I  did  not. 

Question.  Was  Castner  Hanway  there  during 
the  inquest  ? 

Answer.    He  was  not. 

Question.    Or  Lewis  ? 

Answer.    Neither  that  I  know  of. 

Question.  Then  Lewis  was  not  present  during 
the  inquest  ? 

Answer,    No,  sir. 

Question.  Did  not  a  colored  man  come  to  your 
place  or  house  the  day  before  for  any  purpose, 
if  so,  state  what? 

Mr.  Stevens.  Stop  a  moment,  I  do  not  know 
what  is  to  be  opened  now. 

Judge  Grier.    It  is  no  matter  now. 

Mr.  Brent.  The  Court  has  allowed  the  de- 
fendants to  introduce  evidence  here  for  the  pur- 
pose of  rebutting  the  prima-facie  evidence  on  the 
part  of  the  Uuited  States,  for  the  purpose  of  un- 
lawfully treating  a  law  of  Congress.  The  open- 
ing of  the  defence  was,  that  there  was  an  organi- 
zation in  that  neighborhood,  growing  out  of  a 
case  of  lddnapping. 

Mn.  Stevens.  We  have  offered  no  such  evi- 
dence. 

Me.  Brent.    Dont  interrupt  me.    It  was  a 
transaction  that  took  place  at  the  house  of  a 
Mr.~- 
'     Judge  Kane.  Chamberlain? 

Mr.  Brent.  Yes,  sir.  That  took  place  in 
January  last.  Now  we  proposed  upon  this 
strictly  rebuting  proof,  that  this  organization  did 
not  succeed  that  transaction.  We  shall  show  in 
the  first  place,  if  we  are  not  much  mistakon,  that 
this  was  a  fugitive  slave  -who  was  carried  away 
on  that  occasion,  and  that  he  was  not  illegally 
taken  or  kidnapped.  We  shall  show  that  this 
organization  took  place  anterior  to  this  trans- 
action, and  grew  out  of  no  case,  where  a  man 
came  for  the  purpose  of  arresting  a  fugitive  slave. 
We  shall  show  that  this  organization  was  to 
that  effect,  and  that  it  was  not  an  organization 
merely  for  the  purpose  of  rescuing  those  who 
might  be  legally  seized  or  taken  away,  and  we 
wish  to  show  that  somebody  had  come  into  that 
neighborhood  about  that  time,  and  called  at  the 
house  of  Mr.  Cooper,  and  stated  the  general  cir- 
cumstances. It  is  a  mere  question  as  to  order 
of  proof. 

Judge  Grier.  You  are  now  cross-examining 
the  witness,  when  you  come  to  offer  rebutting, 
j  you  can  make  a  specific  offer. 

Mn.  Stevens.  I  do  not  know  whether  I  asked 
you  as  to  whom  Dr.  Tierce  owed  his  life  ? 


UNITED  STATES   V,  HAjSWAY. 


143 


Ays^E?.,    I  .Id  not 


rw  that  he  expressed  it 


partieu:  ir'v  in  the  answer. 

Ma.  Brent.  Li  I  you  see  the  body  of  Mr. 
Gorsuch,  -when  it  was  first  taken ;  you  say  it  was 
carried  in  your  wagon.  Did  you  examine  the 
the  bodv,  or  the  clothing,  to  see  if  there  was  any 
money  in  the  clothing '.' 

Answer.    I  did  not. 

Question".  Did  any  one  in  your  presence  ex- 
amine the  pockets,  to'see  if  he  had  any  money  ? 

Answer.    They  were  examined  at;  Christiana. 

Question.    Was  any  thing  found. 

Mr.  Stevens.    We  must  object. 

Judge  Grier.  You  cannot  object  at  hawing  a 
more  fall  statement  to  the  very  things  examined 
about. 

Mr.  Brent.  He  has  spoken  of  the  body,  it  is 
for  the  court  to  say. 

Judge  Greer.  It  is  evident  you  are  only  ask- 
ing as  to  the  examination-in-chief. 

Me.  Brent.  I  want  to  know  whether  any 
money  was  found  in  his  pocket  at  Christiana  ? 

Answer     There  was  not. 

John  Manderson  is  called  and  sworn. 

Mr.  Stevens.  Do  you  know  the  general  char- 
acter of  Henry  H.  Kline  for  truth  and  veracity  ? 

A.vswER.    Yes.  sir.  I  think  I  do. 

Questi o n .    Wha t  is  it  ? 

Answer.    Bad.  sir. 

Question.    How  long  have  you  known  him  '? 

Answer.    Ten  or  twelve  years. 

Jacob  Glassmire  is  called  and  sworn. 

Question.  Dd  you  know  the  general  charac- 
ter of  Henry  H.  Kline  for  truth  and  veracity  ? 

Answer.  I  have  no  personal  knowledge  of  the 
man. 

Question.    What  is  his  general  character  *? 
Answer.  Bad. 

Mr.  Cooter.  When  did  vou  hear  it  snoken 
of  ? 

Answer.    I  have  heard  it  spoken  of  reeenQy 
and  some  time  ago  ;  no  particular  time. 
Question.    Some  months  ago  ? 
Answer.    Yes.  sir. 

Mr.  John  Houston  is  called  and  affirmed. 
Mr.  Stevens.    Where  did  vou  live  in  Septem- 
ber last  ? 

Answer.    In  Christiana. 

Question.  Be  so  good,  sir,  as  to  state  whether 
about  the  railroad  in  the  neighborhood  of  Chris- 
tiana, any  party  of  men  were  at  work  on  the 
public  works,  and  that  in  the  morning  it  was 
habitual  to  call  them  to  breakfast  with  a  bugle 
horn  with  a  reed  in  it  ? 

Answer.  There  was  and  there  has  been  since 
June  last,  a  party  that  have  been  in  the  custom  of 
blowing  a  horn  in  the  morning,  to  call  the  hands 
to  work  very  early;  as  early  sometimes  as  day- 
light :  it  sometimes  was  before  day-light :  I  did 
not  hear  it  every  day  during  the  summer,  but  on 
two  days  in  the  week,  Tuesdays  and  Fridays. 

Question.  How  came  you  to  hear  it  on  those 
mornings  ? 

Answer.  I  had  to  get  up  soon  on  those  morn- 
ings, in  order  to  cut  up  the  meat,  being  a  butcher, 
and  I  had  to  get  up  early. 

Question.    What  kind  of  a  horn  was  it  ? 

Answer.    It  was  a  horn  about  sixteen  or 


'  eighteen  inches  long,  a  small  reed  hom.  A  tin 
!  horn  with  a  reed  for  the  blower. 

Mr.  G.  L.  Ashmead.  Do  you  recollect  what 
is  called  the  Old  Valley  road  ? 

Answer.    It  is  just  called  the  Valley  road. 

Question.  That  part  of  the  rail-road  where 
:  the  horn  was  blown,  is  it  to  the  right  or  left '? 

Answer.  Going  that  way  it  would  be  north 
or  left,  just  what  I  wanted. 

Mr.  Stevens.    What  is  right  or  left  ? 

Answer.  It  is  right  coming  from  Penning- 
\  tonvilie. 

Mr.  G.  L.  Ashmead.    When  you  get  out  of 

the  long  lane,  going  to  Parker" 3  Tiouse  from  the 
creek,  what  direction  would  that  sound  proceed 
from,  right  or  left  *? 

Answer.  Going  in  the  north  direction  from  the 
creek  to  Parker's  house,  it  would  be  directly 
!  behind  you.  and  if  you  come  in  the  long  lane, 
I  it  would  be  left. 

Question.    In  the  long  lane  ? 
Answer.    Yes,  sir. 

Mr.  Stevens.  Before  you  get  to  the  long  lane 
towards  the  rail-road  ? 

Answer.    Yes.  sir,  it  is  to  the  right  hand. 

Question.  When  you  turn  down  the  long  lane 
it  would  be  the  left  ? 

Answer.    Yes.  sir. 

Mr.  Brent.  Do  you  say  it  would  be  the  right 
coming  from  the  creek  V 

Answer.  In  a  direct  line  it  would  be  be- 
I  hind. 

Question.    Before  you  get  to  the  valley,  how 
is  it  then  ? 
Answer. 
Question 


Directly  behind. 
How  far  do  you  go  on  the  valley 
road,  before  you  get  to  the  valley  lane  ? 

Answer.  About  one  quarter  of  a  mile  maybe. 
Question.    Why  did  you  say  you  heard  the 
horn  on  Tuesdays  and  Fridays  *? 

Answer.  Those  are  the  davs  I  have  to  get  up 
early,  to  see  to  killing  the  meat.  I  don't  get  up 
every  day  before  sunrise. 

Mr.  G.  L.  Ashmead.    If  you  were  at  Sadsbury 
'  school  house,  going  from  there  to  the  valley  road, 
what  direction  would  it  be  ? 

Answer.  It  would  be  to  the  left  shoulder, 
!  going  up  the  hill,  rather  behind  though. 

Mr.  Stevens.    I  understand  you,  that  the 
railroad  lies  to  the  north  of  the  valley  road  ? 
Answer.    Yes,  sir.  it  is  to  the  right  then. 
Mr.  Ludlow.    What  direction  is  this  railroad 
from  the  Sadsbury  school-house  and  the  place 
were  these  men  were  working  ? 

Answer.  From  Sadsbury  school-house,  it 
would  be  northeast,  as  near  as  I  can  tell. 

Question.  Is  that  right  or  left  coming  from 
the  creek  towards  the  valley  road  and  towards 
Parkers  hou^e  ? 

Answer.    It  is  a  little  left. 
Mr.  Stevens.    Is  the  school-house  right  of  the 
valley  road  ? 

Answer.    Yes,  sir. 
John  Dittus  is  called  and  sworn. 
Mr.  Stevens.    Do  you  know  the  general  cha- 
racter for  truth  and  veracity  of  Henry  H.  Kline  ? 

Answer.  I  never  heard  any  thing  good  of  it.  I 
have  known  him  this  twelve  vears 


144 


TREASON  CASES. 


Question.  You  have  known  Mm  for  twelve 
years  ? 

Answer.    Yes,  sir. 

Mr.  Ludlow.  Did  you  not  ask  Mr.  Kline  to 
subpoena  you  in  this  cause  ? 

Answer.    No,  sir. 

Question.    You  never  did  ? 

Answer.    No,  sir. 

Joseph  Parker  is  called  and  sworn. 

Mr.  Stevens.  How  long  have  you  known 
Henry  H.  Kline  ? 

Answer.    For  the  last  ten  or  twelve  years. 

Question.  Do  you  know  his  general  character 
for  truth  and  veracity  ? 

Answer.    By  hearsay. 

Question.    Well  then  all  you  have  heard. 

Answer.    Bad,  generally. 

Mr.  Ludlow.  Did  you  ever  have  any  diffi- 
culty with  Mr.  Kline  ? 

Answer.  Once. 

Enoch  Harlan  is  called  and  affirmed. 

Mr.  Stevens.  How  long  have  you  known 
Castnar  Hanway  ? 

Answer.  It  is  about  twenty-eight  years,  I 
think,  since  his  father  first  came  there,  he  was  a 
small  boy. 

Question.  What  has  been  during  and  about 
that  time,  his  character  as  a  good  or  orderly 
peaceable  boy  or  citizen  ? 

Mr.  Cooper.  I  know  that  the  general  rule  is, 
then,  in  prosecutions  for  murder,  riot,  and  mis- 
demeanors of  various  kinds,  that  the  evidence  to 
prove  them  as  peaceable  men,  is  admitted.  But 
where  a  political  offence  against  the  government 
is  charged,  I  have  never  heard  of  a  question 
being  asked,  and  I  do  not  think  there  can  be  a 
case  found,  in  which  evidence  of  character  was  ad- 
mitted in  a  prosecution  for  treason,  and  an  allega- 
tion of  disaffection  towards  the  government,  and  a 
disposition  to  overturn  or  resist  the  law.  There 
have  been  men  found  guilty  of  treason,  men 
whose  general  characters  were  particularly  good, 
and  men  who,  in  all  conditions  of  life,  were  ex- 
emplary, men  who  were  just  and  upright  in  all 
their  dealings,  who  were  models  in  all  social 
relations.  I  do  not  think,  therefore,  that  this 
evidence  ought  to  be  admitted.  I  merely  men- 
tion it,  because  there  may  be  precedents  taken 
from  it. 

Mr.  Stevens.  It  seems  to  me  there  is  but 
one  ground.  If  he  did  not  think  it  was  not  a 
doubtful  case,  there  might  be  objections. 

Judge  Grier.  I  can  see  no  difference,  in  a 
case  of  treason  and  murder.  Wherever  there  is 
contradictory  and  conflicting  evidence  on  any 
subject  on  which  guilt  is  imputed  to  a  man,  it  is 
a  question  of  probability  often,  whether  such  a 
man,  or  men  of  such  a  character,  would  do  a  cer- 
tain thing.  It  might  be  a  very  conclusive  proof 
against  a  man  of  notorious  character,  if  a  coun- 
terfeit $10  bill  was  found  in  his  pocket, — it 
would  be  no  evidence  against  a  man  who  holds  a 
high  position  in  the  community.  It  even  might 
be  supposed  that  in  the  case  of  the  Western 
Insurgents,  it  would  be  proper  evidence  that  the 
prisoner  was  a  federalist  and  belonged  to  the 
government  party  ;  and  I  consider  that  any  proof 
must  be  accepted  that  will  have  a  tendency  to 


prove  the  previous  disposition  on  the  part  of  the 
accused. 

Mr.  Stevens.  The  question  asked  you  was, 
whether  all  the  time  you  knew  him,  the  character 
of  Mr.  Hanway  was  that  of  a  peaceable,  good, 
loyal,  and  orderly  citizen  ? 

Witness.  He  has  not  been  in  my  particular 
neighborhood  the  whole  of  that  time.  He  had 
moved  out  of  the  neighborhood,  and  had  been 
back  and  forward  in  the  neighborhood.  I  have 
known  him  for  the  whole  of  that  time,  but  he 
has  not  resided  in  my  immediate  neighborhood. 
I  have  never  known  or  heard  any  thing  of  his 
character,  but  that  he  was  quiet,  peaceable, 
and  loyal ;  and  he  was  so  far  as  I  have  known 
him,  and  always  has  been  rather  remarkably  a 
quiet  man ;  rather  more  so  than  most  young 
men,  and  of  a  peaceable  disposition. 

Mr.  Ashmead.    You  said  he  was  loyal  ? 

Answer.  I  never  knew  any  thing  to  the  con- 
trary. 

Question.  I  want  to  understand  what  you 
mean  by  loyal.  Would  you  understand  one  to 
be  loyal  whose  sentiments  were  opposed  to  the 
Fugitive  Slave  Bill  of  1851,  and  would  refuse  to 
assist  in  the  execution  of  that  law  ? 

Mr.  Stevens.  If  they  ask  the  defendant  in 
regard  to  this,  I  have  no  objection;  but  if  they 
ask  the  witness,  I  object  to  it. 

Judge  Grier.  You  must  not  catechise  him  in 
regard  to  his  faith. 

Mr.  Ashmead.  I  only  want  to  understand, 
what  he  means  by  the  word  loyal,  and  what  his 
definition  would  be  generally,  and  I  would  like  to 
put  a  case. 

Judge  Grier.  You  had  better  let  him  put  his 
own  case. 

Mr.  Ashmead.    What  do  you  mean  by  loyal  ? 

Witness.  What  I  mean  by  loyal,  would  be  a 
man  that  would  not  resist  the  laws  of  his  country 
by  any  more  than  the  sentiment  which  he  might 
entertain  that  they  might  be  amended,  and  to 
effect  the  amendment  by  any  constitutional 
means. 

Question.  In  the  estimation' of  the  word  loyal, 
does  this  ingredient  enter  with  it.  A  man  who  will 
by  every  obligation  put  upon  him,  abide  by  those 
obligations  ? 

Answer.    I  don't  exactly  understand. 

Question.  I  want  to  know  whether  you  un- 
derstand by  loyal,  or  a  man  who  is  loyal,  one 
who  would  perform  any  duty  and  any  obligation 
that  the  law  of  the  land  lays  upon  him  ? 

Answer.  I  think  there  are  some  obligations 
which  my  country  would  require  me  to  do,  which 
I  could  not  conscientiously  do.  I  might  be  re- 
quired to  fight  the  enemies  of  my  country,  which 
I  could  not  do. 

Question.  I  am  asking  you  to  state  whether 
your  idea  of  a  loyal  citizen  consists  of  one  who 
would  obey  every  obligation  which  the  law  puts 
upon  him  ? 

Answer.    I  believe  myself  to  be  a  loyal  citizen. 

Mr.  Ashmead.  Answer  my  question.  I  have 
no  doubt  you  are. 

Answer.  I  would  say  there  were  some  duties 
which  the  laws  of  our  country  might  impose  upon 
me  which  I  could  not  conscientiously  perform ; 


UNITED  STATES  V.  HAXWAY.  145 


trhich  if  by  not  performing  them  I  am  not  loyal, 
I  am  not  a  loyal  citizen. 

Mb.  Stevens.  Does  Mr.  Hanway  belong  to 
your  sect  ? 

Answer.  He  is  not  a  member  of  either  branch 
of  the  Society  of  Friends  that  I  know  of,  and  he 
never  was  to  my  knowledge. 

Mu.  Brent.  These  sentiments  are  a  part  of 
the  religion  of  the  sect  to  which  you  belong  ? 

Answer.    Yes,  sir. 

Question.  But  outside  of  the  doctrines  of 
your  religion,  would  you  consider  yourself  or  any 
man  loyal,  who  had  reserved  to  himself  the  right 
to  nullify  or  obstruct  the  laws  of  his  country  ? 

Answer.  I  should  suppose  there  was  a  dis- 
tinction between  nullify  or  obstruct.  A  man 
standing  passively  by,  and  seeing  the  law  execut- 
ed, and  not  executing  it  himself. 

Question.  You  don't  consider  a  man  is  loyal, 
when  surrounded  by  the  officers  of  the  United 
States,  is  standing  by,  and  if  ordered  to  assist 
and  not  do  it  ? 

Answer.  If  the  law  made  it  his  duty  to  as- 
sist, as  I  said  before,  there  are  cases  in  which  I 
could  not  assist  myself. 

Question.  Then  I  understand  you  to  be  a  dis- 
tinction between  the  active  and  passive  ? 

Answer.  Yes,  sir.  I  could  not  conscienti- 
ously fulfill  the  duty  myself. 

The  Court  adjourned  till  Thursday,  Dec.  4. 
1851,  at  10  A.  M. 


Philadelphia,  Thursday,  December  4th,  1851. 

Court  was  opened  at  10  o'clock. 
PRESENT,  JUDGES  GRIER  AND  KANE. 

Jurors  called  and  answered  to  their  names. 

Charles  H.  Roberts,  affirmed. 

Mr.  Stevens.  Do  you  know  the  general  cha- 
racter for  truth  and  veracity  of  Henry  II.  Kline? 

Answer.  I  think  I  can  say  I  do  know  it  from 
those  who  know  him,  and  who  I  know. 

Question.    What  is  that  character? 

Answer.    It  is  very  bad. 

Joseph  3VL  Thompson,  sworn. 

Mr.  Lewis.  Are  you  acquainted  with  Castner 
Hanway,  the  defendant  ? 

Answer-  Yes. 

Question.  How  long  have  you  been  acquaint- 
ed with  him  ? 

Answer.  My  intimate  acquaintance  was  du- 
ring the  years  1814  and  '45. 

Question.  Did  he  live  at  that  time  in  your 
neighborhood  ? 

Answer.    Within  a  mile  and  a  half. 
,    Question.    Have  you  known  him  before  and 
since  ? 

Answer.    I  had  merely  known  him  by  sight. 


If  you  know,  state  what  is  his  char- 
peaceable,  orderly,  well-disposed 


Mr.  Lewis.  How  long  have  you  known  Mr. 
Hanway '.' 

Answer.    About  eight  or  ten  years. 

Question.  Did  he  during  any  of  that  period 
live  in  your  immediate  neighborhood? 

Answer.  He  lived  with  me  for  fifteen  months. 

Question.  If  you  know,  say  what  has  been 
his  character  as  a  peaceable,  quiet,  orderly 
citizen  ? 

Answer.    Remarkably  good. 

Levi  Wayne  Thompson,  sworn 

Mr.  Lewis.  How  long  have  you  known  Mr. 
Hanway  ? 

Answer.  I  have  known  him  for  about  fifteen 
years. 

Question. 
acter,  as  a 
citizen. 

Answer.    I  have  known  him  to  be  a  peaceable, 
orderly  citizen.    I  know  nothing  else  of  him. 
Andrew  Mitchell,  sworn 

Mr.  Lewis.  How  long  have  you  known  Mr. 
Hanway 1 

Answer.    Some  eight  or  ten  years. 

Question.    Have  you  known  him  intimately  ? 

Answer.  I  was  intimately  acquainted  with 
him,  and  have  been  for  eight  or  ten  years. 

Question.  What  character  has  he  supported 
during  that  time  ? 

Answer.  I  always  thought  he  supported  an 
exemplary  character. 

Question.  Of  an  orderly,  well-disposed  citi- 
zen ? 

Answer.    Yes,  sir. 

Wharton  Pennock,  affirmed. 

Mr.  Lewis.  State  how  long  you  have  known 
Castner  Hanway. 

Answer.  I  have  known  him  for  about  five 
years,  and  I  have  known  him  well  for  the  last 
four  years. 

Question.  If  you  know,  state  what  kind  of  a 
character  he  has  supported  during  that  period  as 
a  well-disposed,  orderly  citizen. 

Answer.  He  has  been  unexceptionable — re- 
markably good. 

Samuel  Pennock,  affirmed. 

Mr.  Lewis.  State  how  long  you  have  known 
Mr.  Hanway. 

Answer.    About  four  years  ;  from  four  to  five. 

Question.  If  you  know  what  kind  of  a  charac- 
ter he  has  supported  during  that  period  as  an 
orderly,  well-disposed  citizen,  state  what  it  is. 

Answer.    It  is  very  good. 

John  Bernard,  affirmed. 

Mr.  Lewis.  How  long  have  you  known  Mr. 
Hanway  ? 

Answer.  About  five  or  six  years  since  I  have 
known  him. 

Question.    During  that  period  what  kind  of  a 


I  had  no  intimate  acquaintance  with  him  "till  character  has  he  supported  as  an  orderly,  well- 


that  time,  when  I  had  constant  intercourse  with 
him.  I  have  known  him  ever  since,  though  he 
has  not  been  in  the  neighborhood  lately. 

Qcestion.  What  has  been  his  character  as  a 
peaceable,  quiet,  orderly  citizen? 

Answer.  Very  good — I  never  heard  it  called 
in  question. 

George  Mitchell,  sworn. 


19 


disposed,  quiet  citizen  ? 
Answer.  Excellent. 
Calvin  Russel,  affirmed 

Mr.  Lewis.    How  long  have  you  been  ac- 
quainted with  Castner  Hanway  '.' 
Answer.    Ever  since  he  was  a  boy. 
Question.    Where  did  you  know  him  ? 
Answer.    At  Doe-run,  Chester  county. 


146 


TREASON  CASES. 


Question.  State  what  kind  of  a  character  he 
has  supported  as  a  peaceable,  orderly,  well- 
disposed  citizen  ? 

Answer.  Very  good — remarkable  from  his 
boyhood  up. 

Isaac  Walton,  affirmed. 

Mr.  Lewis.  How  long  have  you  known  Cast- 
ner  Hanway  ? 

Answer.  It  is  about  fifteen  or  sixteen  years, 
since  I  became  acquainted  with  him  by  report. 

Question.  How  far  did  you  live  from  him  at 
that  time  ? 

Answer.    He  lived  at  my  father's  place. 

Question.  If  you  know,  state  what  kind  of  a 
character  has  he  supported  during  that  period  ? 

Answer.  I  have  been  personally  acquainted 
with  him  about  nearly  three  years  for  the  last 
time  ;  he  has  supported  entirely  an  unblemished 
character  for  a  peaceable  man.  I  know  of  nothing 
at  all  tli at  would  be  likely  to  impeach  him,  or 
impeach  his  peace. 

James  Coates,  sworn. 

Mr.  Lewis.  How  long  have  you  known  Mr. 
Hanway  ? 

Answer.    About  four  years. 

Question.  What  kind  of  a  character  has  he 
supported  during  that  period  as  a  peaceable, 
well-disposed,  orderly  citizen  ? 

Answer.  Very  good,  so  far  as  I  know.  A 
remarkably  good  character. 

Ellis  P.  Irvin,  affirmed. 

Mr.  Lewis.  How  long  have  you  known  Cast- 
ner  Hanway  ? 

Answer.    Four  or  five  years. 

Question.  What  kind  of  character  has  he 
supported  during  that  period  : 

Answer.    Very  good. 

Question.    Where  did  he  live  ? 

Answer.  He  at  one  time  carried  on  the  mill 
for  me,  and  I  always  considered  him  a  very  up- 
right, quiet,  simple,  harmless  man. 

George  W.  Irwin,  affirmed. 

Mr.  Lewis.  How  long  have  you  known  Cast- 
ner  Hanway  ? 

Answer.  I  have  been  intimately  acquainted 
with  him  for  three  years.  I  have  known  him  five 
or  six.  He  lived  with  me  in  the  fall  of  1849.  He 
miliered  for  my  brother,  and  boarded  with  me 
that  winter. 

Question.  State  what  kind  of  character  he 
has  supported  ever  since  you  knew  him  ? 

Answer.  A  very  good  character;  always  a 
peaceable,  quiet,  innocent,  good-hearted  man. 

Mr.  Stevens.  I  dont  know  that  we  have 
proved  our  draft.   (Taking  up  a  map.)  . 

Mr.  J.  W.  Asiimead.  I  have  no  doubt  it  is 
correct ;  there  will  be  no  difficulty  about  it. 

Mr.  Stevens.    We  close  our  testimony  here. 

Judge  Other.  Have  the  United  States  any 
thing  to  rebut  ? 

Mr.  G.  L.  Ashmead  opens  the  rebuttal  as  fol- 
lows : 

May  it  please  your  Honors — Gentlemen  of  the 
Jury. — It  is  my  duty  at  this  time  gentlemen  to 
open  to  you  briefly  the  nature  of  the  rebutting 
testimony  in  this  case  upon  the  part  of  the  United 
States.  In  doing  this  I  shall  pursue  the  same 
course  which  has  hitherto  actuated  the  counsel 


for  the  government.  I  shall  not  attempt  to  offer 
any  thing  which  I  consider  either  irrelevant  to  the 
case  or  that  shall  bear  unfairly  or  unjustly  upon 
the  prisoner  at  the  bar. 

The  United  States  of  America  does  not  seek  a 
victim  in  this  case  ;  it  simply  asks  that  justice 
shall  be  done,  and  the  laws  of  the  country  faith- 
fully and  fairly  administered. 

One  point  to  which  I  shall  direct  your  attention 
in  rebuttal  is  the  character  of  Henry  H.  Kline,  a 
witness  produced  upon  the  part  of  the  prosecu- 
tion. This  witness  has  been  stigmatized  by  the 
learned  counsel  who  opened  this  cause  on  the  part 
of  the  defence  as  a  lying  and  perjured  witness. 
It  was  necessary  gentlemen,  that  this  allegation 
should  be  made  upon  the  part  of  the  defence, 
because  if  you  believe  the  statement  of  Henry  H. 
Kline  on  this  occasion  there  cannot  be  the  slightest 
doubt  as  to  the  guilt  of  the  prisoner  at  the  bar. 

They  have  attempted  to  break  his  testimony 
down  ;  they  have  attempted  to  contradict  him  by 
witnesses  as  to  the  particular  transactions ;  and 
they  have  endeavored  to  break  him  down  by  wit- 
nesses produced  here,  who  have  stated  that  in 
their  opinion,  his  character  for  truth  and  veracity 
was  bad.  It  may  be  proper  for  me,  here  to  re- 
mark, that  the  testimony  of  Henry  H.  Kline  in 
this  case,  does  not  need  support.  He  has  given 
to  you  a  story,  which  from  beginning  to  end  is 
strong  in  itself.  He  has  given  to  you  a  story, 
which  has  been  corroborated  in  every  particular, 
by  all  the  witnesses  to  the  transaction,  who  have 
been  produced  upon  the  part  of  the  United  States  ; 
nay  more,  gentlemen  ;  he  has  been  corroborated, 
as  my  colleagues  will  show  you  hereafter,  when 
they  speak  to  the  evidence  in  the  case  ;  he  has 
been  corroborated  by  a  majority  of  the  very  wit- 
nesses produced  upon  the  part  of  the  defence, 
who  have  testified  to  the  transaction  of  the  11th 
September  last.  There  are  upon  this  jury,  gen- 
tlemen who  come  from  the  interior  of  the  State. 
They  cannot  very  well  appreciate  the  difficulties 
of  the  position  of  a  police  officer  in  a  large  city. 
In  a  city  like  Philadelphia,  it  is  impossible  for  a 
police  officer  to  have  continued  for  several  years 
in  his  office  without  raising  round  him,  in  all 
probability,  a  host  of  enemies.  He  is  called 
upon  to  serve  processes  of  various  kinds  against 
different  individuals,  and  of  course  the  feelings 
of  those  individuals,  and  the  feelings  of  the  inti- 
mate associates,  and  friends  of  those  individuals, 
are  all  opposed  to  him,  and  when  they  have  a 
a  chance  of  testifying  against  him,  they  never 
lose  the  occasion  offered  to  them;  and  allow  me 
to  remark  to  those  who  are  unacquainted  with 
the  police  of  large  cities,  that  the  more  faithful 
a  police  officer  is,  and  the  more  boldly  he  dis- 
charges his  duties,  the  greater  is  the  number  of 
enemies  he  has  clustered  around  him.  In  oppo- 
sition to  all  that  has  been  said  against  Henry  H. 
Kline,  we  shall  show  you  by  a  large  number  of 
respectable  citizens  of  Philadelphia  ;  by  men  who 
have  known  Mr.  Kline  from  his  youth  up,  that  he 
is  a  man  of  undoubted  truth  and  veracity,  and 
that  his  testimony,  upon  this  occasion,  as  well 
as  upon  all  other  occasions,  is  entitled  to  the 
greatest  confidence. 

Another  point,  gentlemen,  to  which  I  shall 


UZsTTED  STATES  V.  HANWAY. 


147 


direct  your  attention  in  rebuttal  is.  as  to  the  '  colored  boy  belonging  to  him  by  the  name  of 
allegation  of  kidnapping,  which  our  friends  on  Jacob  Berry.  We  shall  show  you  that  he  was 
the  other  side,  have  brought  to  your  notice  upon  \  accompanied  by  several  respectable  people  of 
this  occasion.  It  was  said  by  them,  that  in  Jan-  :  Maryland — we  shall  show  you,  that  when  they 
nary  last,  at  the  house  of  a  man  by  the  name  of  got  near  the  house  of  a  man  named  Haines, 
Chamberlain,  kidnappers  visited  that  house,  and  where  this  negro  was  concealed — as  they  were 
carried  off  a  person  into  slavery.  :  passing  a  lime-kiln  on  the  road,  that  a  white 

If  we  are  able,  gentlemen,  to  procure  the  at-  man — because  the  white  population  in  part  in 
tendance  of  the  witnesses  who  were  present  upon  that  neighborhood  and  the  black,  seemed  col- 
that  occasion,  and  particularly  if  we  shall  be  able  leagued  to  effect  a  common  object — the  resist- 
after  the  shortness  of  the  notice  we  have  received  ance  of  the  laws  of  the  United  States  as  to  fugi- 
of  this  matter — to  procure  the  presence  of  the  tive  slaves — A  white- man  hallooed,  "we  know 
master  of  that  person,  we  shall  be  able  to  show  :  who  you  are.  we  will  take  care  of  you — you  are 
you  that  the  person  alleged  to  have  been  kidnap-  j  too  late  to  do  what  you  want."  We  will  show 
ped  was  not  a  freeman,  but  was  a  slave,  and'was  you  that  the  party  proceeded  on  to  the  house  of 
rightfully  carried  back  to  his  master  in  the  State  j'this  Haines,  that  when  they  got  there,  they 
of  Maryland.  ;  knocked  at  the  door,  and  the  window  above  was 

It  was  incumbent  on  the  counsel  for  the  de-  .  thrown  open,  and  a  negro  appeared  and  pointed 
fence  to  do  more  than  they  did,  in  regard  to  this  '  a  gun  at  the  party.  He  was  told  that  if  he  at- 
aliegation.  They  said  in  opening,  that  they  '{ tempted  to  fire  that  gun,  he  would  be  shot  A 
would  prove  it  a  case  of  kidnapping,  and  what  white  woman  was  beside  this  negro  in  the  room 
did  they  do  ?  They  simply  proved  that  a  boy  j  with  him.  and  when  it  was  necessary  for  the 
had  been  taken  away.  It  was  their  duty  to  have  negro  to  make  replies  to  the  white  men,  he 
gone  on.  and  to  have  shown  that  that  boy  was  j  would  turn  round  to  this  white  women  and  take 
a  free  person  :  and  not  having  done  that,  the  his  cue  from  her,  and  make  reply  to  what  was 
conclusion  is  irresistible  that  they  could  not  i  said  on  the  outside.  We  shall  prove  that  almost 
show  it.  and  that  therefore  the  case  which  they  j  immediately  after  they  arrived,  this  same  white 
Lave  alleged  to  be  a  case  of  kidnapping,  and  woman  rang  a  large  bell  out  of  the  window  of  that 
which  they  say  was  a  justification  of  the.  con  house  ;  that  immediately  after  the  bell  was  rung, 
duct  of  Castner  Eanway,  was  a  case  not  such  a  horn  was  blown  from  the -same  house,  and  that 
as  they  represented — but  one  in  which  chey  immediately  succeeding  that,  bells  were  heard 
endeavored  to  resist  the  taking  away  of  a  ringing,  and  horns  blowing,  all  round  the  country 
fugitive  from  labor,  from  the  State  of  Alary- j  in  the  neighborhood  of  that  house,  obliging  the 
land.  Wh  't  they  have  neglected  to  do  we  shall  !  party  who  had  proceeded  there  for  the  purpose 
endeavor  to  supply,  and  if  we  fail  to  do  so,  :  of  arresting  his  slaves  under  the  laws  of  the  United 
it  will  not  be  because  the  person  taken  on  that  States,  to  fly  for  his  life,  and  showing  that  there 
occasion  was  not  a  slave,  but  because  from  the  existed  at  that  time,  to  wit,  in  April,  1851,  pre- 
shortness  of  the  notice  it  will  be  impossible  to  cisely  the  same  kind  of  preconcert  and  combina- 
produce  the  witnesses  before  you.  Mr.  Stevens,  tion  which  we  allege  in  regard  to  the  present 
one  of  the  learned  counsel  for  the  defence,  re-  transaction  and  showing  that  the  opposition  of 
marked  after  they  had  proved,  as  they  allege,  this  the  people  in  the  neighborhood  of  Christiana  was 
particular  case,  that  they  need  go  no  further,  not  to  the  taking  away  of  any  particular  person  or 
that  they  had  proved  one  case  and  that  was  upon  any  particular  occasion,  but  a  general,  long- 
enough.  Do  you  believe,  gentlemen,  if  the  continued  determination,  acted  upon  by  signals,  to 
learned  counsel  for  the  defence  had  had  it  in  prevent  the  execution  of  the  laws  of  the  United 
their  power  to  prove  another  case  even  of  alleg-  States  with  regard  to  fugitive  slaves,  by  force  and 
ed  kidnapping,  that  they  would  not  have  done  it,  ;  violence. 

and  we  are  bound  to  infer,  that  as  they  closed  their  There  is  another  point,  gentlemen  to  which  I 
testimony  as  to  the  single  case,  it  was  the  only  shall  direct  your  attention  in  the  rebutting  testi- 
matter  they  had  it  in  their  power  to  produce   niony  in  this  case. 

before  you:  and  therefore  the  justification  of  A  witness  produced  for  the  defence  by  the  name 
this  transaction,  rests  upon  the  single  case  intro-  of  Jacob  Whitson  has  testified  that  in  a  conversa- 
duced  by  them,  in  which  they  neglected  to  prove  |  tion  witn  Mr.  Kline,  that  he  (Kline)  said  a  reward 
that  the  person  carried  away  was  a  free  man  of  ten  thousand  dollars  had  beenoffered  for  the 
entitled  to  his  liberty.  i  apprehension  of  Parker,  and  that  he  (Kline)  had 

We  shall  show  you,  gentlemen,  because  we  seen  Parker  shoot  old  Mr.  Gorsuch. 
have  now  the  rijzht  to  do  so,  this  matter  having  i  We  will  show  you  by  the  testimony  of  a  gentle- 
been  opened  to  us  on  the  part  of  the  defence,  that  '  man  who  was  present  upon  that  occasion  and 
about  the  rime  of  the  passage  of  the  last  fugitive  j  whose  veracity  cannot  be  impeached,  that  the 
slave  law,  in  September,  1850,  armed  and  orga-  conversation  which  Jacob  Whitson  alleges  he  had 
nized  bands  of  negros,  paraded  the  streets  of  with  Kline,  was  not  with  Kline  at  all ;  that  Kiine 
Lancaster,  on  the  hunt  for  slave  hunters,  and  said  scarcely  three  words  to  him  during  the  whole 
avowing  the  determination  that  if  they  caught  time  he  was  present,  but  that  the  witness  whom 
them,  they  would  kill  them.  We  shall  show  you  we  shall  introduce,  was  the  party  with  whom  the 
further,  that  in  April,  1851,  Samuel  Worthing-  conversation  was  had,  and  that  it  was  a  totally 
ton,  one  of  the  most  respectable  citizens  of  different  conversation  from  that  stated  by  Jacob 
Maryland,  went  up  into  the  immediate  vicinity  .  Whitson.  We  shall  show  you  that  when  the 
ef  Christiana,  for  the  purpose  of  arresting  a  tragedy  at  Christiana  was  alluded  to,  that  this  gen- 


148 


tleman  whom  we  shall  produce,  made  the  remark 
to  Whitson,  "  If  it  had  been  in  my  family  in  which 
this  had  occurred  I  would  have  offered  a  reward 
of  ten  thousand  dollars,  and  should  never  have 
stopped  till  I  had  secured  the  offenders."  A  girl  in 
the  room  asked  the  same  gentleman  if  he  would 
know  Parker  if  he  should  see  him,  and  he  said  he 
thought  he  would  if  he  should  turn  out  to  be  a 
slave°of  old  Mr.  Gorsuch.  You  will  perceive  that  j 
this  conversation,  natural  in  itself,  likely  to  have 
occurred,  and  reasonable  in  its  character,  has  been 
distorted  and  has  been  turned  first  from  its  true 
character,  and  secondly  from  the  true  person. 

Again,  gentlemen,  the  counsel  for  the  defence 
have  offered  testimony  to  show  you  that  a  colored 
man  by  the  name  of  Harvey  Scott  was  not  pre- 
sent at  the  battle  at  Parker's  house.  We  shall 
produce  Harvey  Scott  himself  before  you,  and 
he  will  corroborate  the  statement  of  Kline,  with 
whom  he  has  had  no  interview  and  no  conversa- 
tion. He  will  tell  you  that  he  was  present  upon  that 
occasion,  and  he  will  describe  to  you  how  he  got 
out  of  Carr's  house,  and  at  what  time  he  reached 
it  when  he  returned. 

There  is  another  matter  to  which  I  wish  to 
call  your  attention  in  rebuttal.  Mr.  Joseph  C. 
Dickinson  and  Lewis  Cooper,  have  been  produced 
before  you  to  state  a  general  conversation  they 
had  with  Dr.  Pierce.  They  did  not  confine  this 
merely  to  contradicting  the  particular  ques- 
tions which  Mr.  Stevens  asked  Dr.  Pierce  when 
upon  the  stand,  but  they  went  on  and  related 
general  conversations  they  had  with  him.  We 
shall  show  you  that  their  conversations  have 
been  either  misunderstood  or  misstated,  and  we 
shall  show  you  that  Dr.  Pierce  never  intended  to 
convey  to  them  by  what  he  said  on  either  of 
those  occasions,  any  thing  like  the  meaning 
which  they  have  attached  to  his  language,  and 
we  shall  show  you  that  when  they  speak  of  Dr. 
Pierce's  saying  that  Hanway  had  saved  his 
life,  that  he  did  not  mean  by  that,  that  Hanway 
had  done  anything  to  save  his  life  from  a  noble 
or  generous  impulse  of  his  nature,  but  that  it 
arose  simply  from  the  fact  that  Castner  Hanway's 
body  was  interposed  between  the  fire  of  the 
blacks  and  himself,  and  that  it  was  necessary  for 
him  to  prevent  the  firing  of  the  blacks  in  that 
direction  in  order  not  to  save  the  life  of  Dr. 
Pierce,  but  his  own. 

^Testimony  has  been  introduced  on  the  part  of 
the  defence  to  show  you  some  impropriety  in  the 
behavior  of  Henry  H.  Kline  at  Christiana,  at  the 
time  it  was  alleged  he  was  turned  out  of  the  room 
by  the  officers.  We  shall  show  you  by  the  testi- 
mony of  persons  present  then,  that  the  behavior 
of  Kline  was  strictly  correct — that  he  did  nothing 
more  than  his  duty  as  an  officer  and  a  citizen, 
called  upon  him  to  do,  and  that  he  was  unjustly, 
unfairly,  and  violently  treated  upon  that  occa- 
sion. We  shall  go  further  in  our  rebutting  tes- 
mony,  and  we  shall  show  you  that  in  the  county 
of  Lancaster,  meetings  have  been  held,  speeches 
have  been  made,  and  resolutions  adopted — not  to 
sustain  the  laws  of  the  United  States,  not  to  sus- 
tain the  Constitution  of  the  United  States,  but  to 
sustain  that  higher  law,  which  in  their  opinion 
overrides  the  laws  and  the  Constitution,  and  ena- 


bles every  man  according  to  the  dictates  of  his  own 
perhaps  misguided  and  corrupted  conscience,  to 
act  as  he  thinks  proper,  disregarding  his  obli- 
gations to  the  laws  of  his  country.  We  shall 
show  you  particularly,  that  a  meeting  was  held 
upon  the  11th  of  October,  1850,  in  Bart  town- 
ship, in  the  county  of  Lancaster,  and  the  remarks 
made  in  the  Lancaster  Examiner,  with  regard  to 
;  this  meeting  which  are  very  brief,  are  so  appro- 
priate that  I  shall  read  them  to  you  now,  as  part 
of  my  remarks  upon  this  occasion. 

Mr.  Read.  We  do  not  wish  to  object  to  any 
opening  on  the  part  of  the  rebutting  testimony, 
but  we  should  like  it  to  be  confined — ■ 

Mr.  Ashmead.  I  have  adopted  it  as  part  of 
my  own  language. 

Mr.  Read.  I  wish  the  gentleman  would  speak 
it  from  memory.  We  have  not  objected,  but  a 
great  portion  of  this  we  shall  contend  is  irre- 
levant and  improper. 

Judge  Grier.  I  don't  know  how  a  matter  in 
the  Lancaster  Examiner,  as  such,  can  be  properly 
introduced  as  evidence.  If  you  have  remarks  to 
make,  you  can  make  them  better  yourself. 

Mr.  G.  L.  Ashmead.  I  will  not  read  that 
then,  gentlemen.  I  shall  however,  offer  evi- 
dence, to  prove  that  at  that  meeting  the  follow- 
ing resolutions  were  passed.    "  Resolved — " 

Mr.  Read.  I  object  to  that.  When  we  come 
to  the  argument,  we  shall  object  to  the  whole  of 
this.  It  is  not  the  proper  mode  in  rebutting 
testimony  to  open  the  case  again.  It  is  pro- 
posed to  read  a  series  of  resolutions  which  are 
not  proved. 

Judge  Grier.  What  is  evidence  in  chief, 
could  not  be  evidence  by  way  of  rebuttal  WThat 
would  be  the  very  essence  of  the  case,  it  issnot 
the  proper  time  to  bring  in,  in  rebuttal. 

Mr.  G.  L.  Ashmead.  May  it  please  your 
Honors,  on  the  part  of  the  defence,  they  have 
offered  evidence  to  show  that  the  state  of  public 
feeling  in  that  county  was  not  opposed  to  the 
Fugitive  Slave  Law,  and  that  they  never  did 
resist  the  execution  of  it  in  a  violent  and  forci- 
ble manner. 

Mr.  Stevens.  Not  a  word. 
Judok  Grier.  I  think  it  has  been  clearly  proven 
that  they  have  committed  a  murder,  what  fur- 
ther I  do  not  say.  Of  course  the  Counsel  will 
not  attempt  to  put  things  before  the  jury,  under 
the  licence  of  an  opening  speech,  that  which 
would  not  be  received  as  testimony.  I  know  it 
is  sometimes  done,  but  it  is  not  fair  either 
against  or  for  the  prisoner.  I  have  no  doubt 
you  are  stating  what  you  are  able  to  prove, 
but  I  doubt  Whether  it  will  be  evidence  or 
not. 

Mr.  G.  L.  Ashmead.  We  shall  offer  to  prove, 
and  I  am  certain  I  should  not  have  offered  it, 
unless  I  thought  it  was  competent  testimony, 
that  at  that  meeting  they  resolved,  that  it 
was  their  duty  to  assist,  feed,  clothe  and  aid  to 
escape,  a  fugitive  slave,  in  direct  opposition  to 
I  the  law  passed  by  Congress.  I  have  a  right, 
gentlemen,  to  state  to  you  what  we  think  to  be 
competent  testimony  in  rebuttal  in  this  cause. 
I  exercise  it  in  good  faith.  I  say  here  nothing 
but  what  I  believe  under  the  laws  oi  the  coun- 


UNITED  STATES  V.  HANWAY. 


149 


try  is  strictly  and  fairly  evidence  in  a  case  like  ] 
this.  I  shall  not  indulge  in  any  general  remarks,  j 
this  is  not  the  time  and  place  for  it,  they  will  be 
embraced  more  properly  in  the  duties  of  my  col-  J 
leagues  who  are  to  speak  to  the  evidence  in  the  | 
cause  :  but,  I  will  say  this  to  you,  that  when  the 
learned  counsel  who  opened  this  cause  on  the 
part  of  the  defence,  ridiculed  the  idea  of  thirty- 
eight  negroes  and  three  white  men,  levying  war 
against  the  United  States,  he  did  not  look  upon 
it  in  its  true  light.  It  is  important,  gentlemen, 
not  from  the  simple  events  of  the  11th  of  Sep- 
tember last,  but  important  from  the  fact,  that 
these  events  prove  a  deep  seated  feeling  of  hos- 
tility on  the  part  of  a  portion  of  the  people  of 
Lancaster  county  against  some  of  the  laws  of 
the  United  States,  and  a  determination  on  the 
part  of  that  portion  of  the  people  to  oppose  those 
laws  at  all  risks,  and  at  all  hazards.  We  have 
seen,  gentlemen  of  the  jury,  a  man.  who  has 
come  into  this  Court-room,  and  who,  in  the  face 
of  open  day,  before  the  public,  in  the  very  edifice 
from  which  the  Declaration  of  Independence  was 
first  given  to  the  world — that  man  comes  forward, 
and  states  that  he  considers  it  to  be  loyal  in  a 
citizen  to  stand  by  and  witness  passively  a  re- 
sistance to  the  laws  of  the  United  States.  Nay, 
further,  that  he  considers  it  against  his  con- 
science to  fight  the  battles  of  his  country  against : 
its  enemies.  V>"hen  I  look  at  the  case  in  con-  j 
nection  with  these  matters,  I  am  prepared  to 
adopt  the  language  of  the  learned  counsel,  when 
he  said.  "  Blessed  be  God  that  our  Union  has 
survived  this  shock."' 

Edward  G.  Wood,  is  called  and  sworn. 

Mr.  G.  L.  Ashmead.  Mr.  Wood,  do  you  know 
the  character  of  Henry  H.  Kline,  fur  truth  and 
veracity  2 

Answer.    Yes.  sir. 

Question.    Is  it  good  or  bad? 

Answer.  Good. 

Question.     Would  vou  believe  him  on  his 
oath  ? 
Answer.    Yes.  sir. 

Question.    How  long  have  you  known  him  ? 

Answer.    Three  years. 

Mr.  Stevens.    What  do  you  follow  ? 

Answer.    I  am  an  officer. 

Question.  Have  you  never  heard  anything 
against  him,  and  that  he  was  a  pickpocket  in 
New  York  ? 

Mr.  George  L.  Ashmeai>.  I  object  to  that 
question,  may  it  please  the  Court. 

Mr.  Stevens.    I  am  going  into  particulars  ? 

Mr.  George  L.  Ashmead.  This  is  a  question 
as  to  truth  and  veracity. 

Judge  Grier.  It  must  be  as  to  general  cha- 
racter, when  you  cross-examine  a  witness.  Still 
I  suppose  it  leads  on  to  show  what  his  general 
character  is.    What  do  you  offer? 

Mr.  Stevens.  That  where  you  go  to  support 
a  man's  character,  you  must  ask  as  to  his  gene- 
ral character  to  show  what  that  is :  but  upon 
cross-examination,  you  may  ask  if  he  has  not 
heard  something  bad  about  or  against  him,  and 
that  you  may  descend  to  particulars,  such  I  un- 
derstand to  be  the  rule  of  law  between  those  who 
support  his  character,  and  those  who  impeach 


it.  Suppose  a  man  says,  I  did  not  hear  anything 
against  another,  and  I  ask  him  whether  he  didn't 
know,  he  had  been  in  the  Penitentiary.  Of 
course  I  leave  it  to  your  Honors? 

Judge  Grier.  I  don't  understand  the  Ques- 
tion at  all. 

Mr.  Stevens.  That  is  the  reason  I  spoke 
about  it :  knowing  your  Honors'  attention  had 
been  called  to  some  previous  evidence. 

Mr.  Cooper.  I  suppose  if  your  Honors  please, 
the  question  was  not  at  ail  competent.  The 
question  proposed  on  the  part  of  the  prosecution 
was:  Do  you  know  the  character  of  Henry  H. 
Kline  for  truth  and  veracity,  the  answer  was — yes. 

What  is  that  character  ?  "  Good."  Would  you 
believe  him  on  his  oath?  "Yes."  Then  the 
question  on  the  other  side  was,  "  Have  you  never 
heard  anything  against  the  character  of  Henry 
H.  Kline."  The  answer  was,  "No."  Then  it 
was  followed  by  "  Didn't  you  hear  that  he  was  a 
pickpocket  in  New  York."  Surely  that  is  not 
competent.  The  whole  question  that  is  open,  is 
the  character  of  the  witness  for  truth  and 
veracity.  They  assailed  it  on  the  part  of  the 
defence,  and  we  are  sustaining  it  on  the  part  of 
the  prosecution,  just  in  the  point  in  which  it  was 
assailed  on  the  part  of  the  defence,  and  no  further. 
If  the  gentlemen  had  permitted  us  to  go  into 
general  character,  we  should  have  been  prepared 
to  day  to  sustain  him  on  those  points  in  which 
they  might  assail  him.  But  surely  it  is  to  be  con- 
fined to  that  which  they  state,  and  whether  his 
character  for  truth  and  veracity  is  good  or  bad. 
He  is  not  prepared  to  defend  himself  against  every 
charge  against  him,  or  any  insinuation  that  may 
be  thrown  out  against  him  for  the  purpose  of 
effect. 

Judge  Grier.  I  think  Mr.  Cooper  is  right  in 
the  way  he  states  the  matter.  I  believe  you 
might  in  such  a  cross-examination  cover  a  man 
with  insidious  charges,  and  by  asking,  didn't  you 
hear  that  he  committed  such  a  murder,  infer 
that  such  a  thing  had  been  publicly  known.  He 
might  be  loaded  down  with  infamy  if  you  allow 
such  questions  as  that. 

Mr.  Stkvens.  It  would  depend  upon  the  answer. 
Judge  Grier.    The  question  assumes  the  fact, 
I  and  leaves  the  inference,  that  it  exists,  by  asking 
]  the  witness  if  he  heard  it.    I  merely  mention  the 
;  abuse  that  might  be  made  of  such  questions.  But 
I  have  no  such  imputations  against  the  counsel 
in  this  case. 

Judge  Kane.    I  have  never  known  such  a 
1  question  put,  and  I  am  aware  that  it  has  been 
over  and  over  again  attempted,  and  so  far  as  I 
know,  has  been  ruled  out. 

Mr.  Cooper.  The  witness  answered  he  did  not, 
Mr.  Stevens.    If  I  am  allowed  to  ask  one 
question,  I  want  to  ask  another. 

Mr.  Cooper.  You  have  been  told  you  could 
not. 

Mr.  Stevens.    Therefore  I  shall  not  attempt 

it. 

James  Buckley  is  called  and  sworn. 
Mr.  G.  L.  Ashmeao.    Mr.  Buckley,  do  you 
know  the  general  character  of  Henry  H.  Kline 
for  truth  and  veracity  ? 
Answer.    I  do. 


150 


TREASON  CASES. 


Question.    It  it  good  or  bad  ? 
Answer.  Good. 

Question.    Would  you  believe  him   on  his 
oath  ? 
Answer.    I  would. 

Question.    How  long  have  you  known  him  ? 

Answer.    Eight  or  nine  years. 

Mr.  Stevens.    Do  you  belong  to  the  police? 

Answer.  I  am  the  lieutenant  of  the  police, 
and  an  officer  of  the  criminal  department,  and 
a  special  officer  of  the  Mayor. 

John  Hence  is  called  and  sworn. 

Mr.  G.  L.  Ashmead.  Mr.  Hence,  do  you 
know  the  general  character  of  Henry  H.  Kline, 
for  truth  and  veracity  ? 

Answer.    I  do. 

Question.    Is  it  good  or  bad  ? 

Answer.    Good  ;  I  consider  it  good. 

Question.  Would  you  believe  him  on  his 
oath  ? 

Answer.    I  would. 

Question.    How  long  have  known  him  ? 

Answer.    Upwards  of  ten  years. 

Not  cross-examined. 

Samuel  Goldy  is  called  and  sworn. 

Mr.  G.  L.  Ashmead.  Mr.  Goldy,  do  you 
know  the  general  character  of  Henry  H.  Kline, 
for  truth  and  veracity  ? 

Answer.    I  do,  sir. 

Question.    It  is  good  or  bad  ? 

Answer.    It  is  good,  as  far  as  I  know,  sir. 

Question.  Would  vou  believe  him  on  his 
oath  ? 

Answer.    I  would. 

Question.  How  long  have  you  known  him 
Sir? 

Answer.    Twelve  or  fifteen  years. 

Mr.  Read.  Have  you  never  heard  any  thing 
against  his  character  ? 

Answer.    I  have  in  some  respect. 

Question.    Have  you  not  heard  it  doubted  ? 

Answer.    Not  since  this  trial,  sir. 

James  Robinson  is  called  and  does  not  answer. 

Peter  Keller  is  called  and  sworn. 

Mb.  G.  L.  Ashmead.  Mr.  Keller,  do  you 
know  the  general  character  of  Henry  H.  Kline, 
for  truth  and  veracity  ? 

Answer.    I  do,  sir. 

Question.    Is  it  good  or  bad,  sir  ? 

Answer.  Good. 

Question.  Would  you  believe  him  on  his  oath 
sir? 

Answer.    I  would. 

Question.  How  long  have  you  known  him, 
sir? 

Answer.  Twenty-five  years  I  suppose,  we 
were  boys  together. 

Mr.  Read.    Are  you  not  a  police  officer  ? 

Answer.    No,  sir. 

Question.    Have  you  been  ? 

Answer.  I  was,  under  Mayor  Jones,  a  couple 
of  years  ago. 

Samuel  McCahley  is  called  and  makes  no 
answer. 

Charles  Worrell  is  called  and  sworn. 

Mr.  G.  L.  Ashmead.  Mr.  Worrell,  do  you 
know  the  general  good  character  of  Henry  H. 
Kiine  for  truth  and  veracity  ? 


Answer.    I  do. 

Question.    Is  it  good  or  bad  ? 

Answer.  Well,  I  have  had  a  good  deal  to  do 
with  that  man  in  business,  and  he  has  always 
acted  honestly  with  me. 

Question.  Would  you  believe  him  on  his 
oath,  sir  ? 

Answer.    I  would. 

Question.  How  long  have  you  know  him, 
sir  ? 

Answer.    Twelve  or  fifteen  years. 
Question.    What  is  your  business  ? 
Answer.    I  am  an  innkeeper. 
Question.    You  have  known  him  twelve  or 
fifteen  years  ? 

Answer.    Yes,  sir. 

Mr.  Read.  I  understand  you  to  speak  of  your 
own  knowledge,  have  you  not  heard  others  speak 
of  him  ? 

Answer,  Well,  yes,  I  have  heard  others 
speak  disadvantageously. 

Mr.  G.  L.  Ashmead.  Notwithstanding  what 
you  have  heard,  you  would  believe  him  on  his 
oath  ? 

Answer.    Yes,  sir. 

Question.  You  consider  him  a  truthful  man? 
Answer.    I  do,  indeed. 

Mr.  Brent.  Did  I  understand  you  to  say 
what  his  general  character  was,  so  far  as  you 
knew  it,  as  regards  truth  and  veracity. 

Answer.  I  think  he  has  acted  always  honest 
as  far  as  I  have  known  the  man. 

Question.  I  want  you  to  give  his  general 
character,  not  what  particular  individuals  would 
say,  but  what  the  majority  of  them  would  say. 

Answer.  I  have  heard  some  speak  ill  against 
him. 

Question.    Have  you  ever  heard   any  one 
speak  in  favor  of  him  ? 
Answer.    Yes,  sir. 

Judge  Kane.  What  is  commonly  thought  of 
him  as  to  his  general  character  for  truth  and 
veracity  ? 

Answer.  I  have  heard  him  favorably  spoke 
of,  and  I  have  heard  others  again  say  that  he 
was  a  bad  man. 

Mr.  G.  L.  Ashmead.  Notwithstanding  all  you 
have  heard  either  for,  or  against  him,  do  you 
consider  him  an  honest  man,  and  entitled  to  be 
believed  on  his  oath  ? 

Answer.    I  do,  sir. 

Wm.  M' Daniels  is  called,  and  sworn. 

Mr,  G.  L.  Ashmead.  Mr.  M'Daniels,  do  you 
know  the  general  character  of  Henry  H.  Kline, 
for  truth  and  veracity  ? 

Answer.  I  have  know  him  for  a  number  of 
years,  I  think  I  do. 

Question.   Is  it  good,  or  bad  ? 

Answer.  I  should  suppose  his  character  was 
good. 

Question.  Would  you  believe  him  on  his 
oath  ? 

Answer.    I  would. 

Question.    How  long  have  you  known  him  ? 
Answer.    I  suppose  eighteen  years. 
Mr.  Read.    You  say,  I  suppose  it  is  good? 
Answer.     Yes,  sir ;  but  I  have  heard  him 
badly  spoken  of  during  this  trial. 


UNITED  STATES  V.  EOTiY, 


151 


Question.    Where  do  you  live  ? 
Answer.    Northern  Liberties. 
Question.    Whereabouts  ? 
Answer.    Fourth  above  Green  street. 
Question.    What  is  your  business  ? 
Answer.    Tax  collector. 

Mb.  G.  L.  Ashmead.  Notwithstanding  what 
you  have  heard  during  this  trial,  would  you  be- 
lieve him  on  his  oath  ? 

Answer.    Yes.  sir. 

W.  B.  Rankin,  called  and  affirmed. 

Me.  G.  S.  Ashmead.  Mr.  Rankin,  do  you 
know  the  general  character  of  Henry  H.  Kline 
for  truth  and  veracity  ? 

Answer.  I  have  known  him  for  a  number  of 
years,  and  I  have  never  heard  his  character  call- 
ed into  question. 

Question.  •  Would  you  believe  him  on  his 
oath  sir '? 

Answer.    I  would  as  soon  as  any  other  man. 

Question.    How  long  have  you  known  him? 

Answer.    Fifteen  or  sixteen  years. 

Mb.  Brent.  What  do  you  mean  by  as  soon  as 
any  other  man? 

Answer.  I  would  believe  any  other  man 
whose  character  had  not  been  called  in  question 
for  truth  and  veracity,  and  one  whose  character 
I  had  never  heard  called  in  question. 

Question.  Then  you  would  not  believe  him 
as  soon  as  any  other  man  ? 

Answer.    No,  sir. 

Alderman  Brazier,  is  called  and  sworn. 
Mr.  G.  L.  Ashmead.    Mr.  Brazier,  are  you  an 
Alderman  of  the  city  of  Philadelphia  ? 
Answer.    Yes,  sir. 

Question.  Do  you  know  the  general  character 
of  Henry  H.  Kline  for  truth  and  veracity  ? 
Answer.    I  do. 

Is  it  good  or  bad.  sir. 
Good. 

Would  you  believe  him  on  his 


Question.  Do  you  know  the  general  charac- 
j  ter  of  Henry  H.  Kline,  for  truth  and  veracity '? 

Answer.  I  have  never  had  any  dealings  with 
him. 

Question.  That  is  not  the  question  whether 
you  have  had  any  dealings  with  him.  but  as  10 
general  character  for  truth  and  veracity  ? 

Answer.    I  cannot  say  that  I  know  any  thing 


against  him. 

Question. 
oath  ? 

Answer. 

Question. 

Answer. 


I  would. 

How  long  have  you  known  him, 


Question. 
Answer. 
Question. 
oath,  sir  ? 
Answer. 
Question. 
sir  ? 

Answer.    Fifteen  or  twenty  years. 

Not  cross-examined. 

Thomas  Stainroop,  is  called  and  sworn. 

Mr.  G.  L.  Ashmead.  Mr.  Stainroop,  do  you 
know  the  general  character  of  Henry  H.  Kline 
for  truth  and  veracity  ? 

Answer.    I  do. 

Question.    Is  it  good  or  bad,  sir  ? 
Answer.  Good. 

Question.  Would  you  believe  him  on  his 
oath,  sir  ? 

Answer.    I  would. 

Question.  How  long  have  you  known  him. 
sir  ? 

Aswer.  From  twenty-three  to  twenty-five 
years. 

Not  cross-examined. 

John  Webb  is  called  and  makes  no  answer. 

John  S.  Keyser  is  called  and  sworn. 

Mr.  G.  L.  Ashmead.  Are  you  the  Marshal 
of  Police,  for  the  city  and  county  of  Phila- 
delphia ? 

Answer.    Yes,  sir. 


Would  you  believe  him  on  his 

I  would. 

How  long  have  you  known  him  ? 
Seven  or  eight  years.  There  is  very 


few  men  but  what  somebody  has  got  something 
against. 

Mr.  Stevens.  Then  you  have  heard  some- 
thing against  this  man. 

Answer.    Yes,  sir,  and  most  every  man. 

John  Webb  is  called  again  and  makes  no 
answer. 

Jacob  Weightman  is  called  and  sworn. 
Mr.  G.  L.  Ashmead.    Mr.  Vreightnian,  do  you 
know  the  general  character  of  Henry  H.  Kline, 
for  truth  and  veracity  ? 
Answer.    I  do. 

Is  it  good  or  bad? 
Good. 

Would  you  believe  him  on  his 


Question 
Answer. 
Question 
oath  ? 
Answer. 
Question 
Answer. 


I  would,  sir. 

How  long  have  you  known  him  ? 
I  have  known  him  over  twelve  years. 
Mr.  Read.    Where  do  you  live  ? 
Answer.    No.  16,  Pennsylvania  Avenue.  I 
knew  him  at  the  Alderman's  office. 
Question.    What  is  your  business  ? 
Answer.    I  am  a  bar-tender,  I  was  carrying 
on  business  for  myself  at  that  time. 

Question.    You  knew  him  at  the  bar,  and  at 
the  Aldermans  office? 
Answer.    Yes,  sir. 
Mr.  Cutler.    What  Alderman  ? 
Answer.    Alderman  Brazier. 
Samuel  Hamilton  is   called  and  makes  no 
answer. 

John  Gamble  is  called  and  sworn. 

Mb.  G.  L.  Ashmead.  Mr.  Gamble,  do  you 
know  the  general  character  of  Henry  H.  Kline 
for  truth  and  veracitv  ? 


Answer. 
Question. 
oath  ? 
Answer. 
Question. 
Answer. 
Mr.  Bead 
Answer. 


I  never  heard  it  questioned. 
Would  you  believe  him  on 


his 


I  would,  sir. 

How  long  have  you  known  him? 
Eight  or  nine  years. 

Are  vou  an  officer,  Mr.  Gamble  ? 
Yes,  sir. 

Mr.  Brent.    Are  you  an  officer  ? 

Answer.    I  am  under'Marshal  Keyser. 

Question.    Are  you  one  of  the  Police  ? 

Answer.    I  have  been,  sir. 

Question.    Are  you  in  the  city  police  ? 

Answer.    I  am,  sir. 

John  Millward  is  called  and  sworn. 

Mr.  G.  L.  Ashmead.  Mr.  Millward,  do  you 
know  the  general  character  of  Henry  H.  Kline 
for  truth  and  veracity  ? 


152 


TREASON  CASES. 


Answer.    Yes,  sir. 

Question.  Is  it  good  or  bad,  sir. 

Answer.    Good,  sir. 

Question.  Would  you  believe  Mm  on  bis 
oath,  sir? 

Answer.    I  would,  sir. 

Question.  How  long  have  you  known  bim, 
sir? 

Answer.    Seven  years. 

Mr.  Read.    Where  do  you  live  Mr.  Millward  ? 

Answer.    57  George  Street. 

W.  W.  Weeks  is  called  and  sworn. 

Mr.  G.  L.  Ashmead.  Mr.  Weeks.  Do  you 
know  the  general  character  of  Henry  H.  Kline, 
for  truth  and  veracity  ? 

Answer.    I  do. 

Question.    Is  it  good  or  bad,  sir  ? 
Answer.  Good. 

Question.  Would  you  believe  him  on  his 
oath;  sir  ? 

Answer.    I  would. 

Question.  How  long  have  you  known  him, 
sir? 

Answer.    Over  twenty  years. 

Not  cross-examined. 

Andrew  Flick  is  called  and  sworn. 

Mr.  G.  L.  Ashmead.  Mr.  Flick,  do  you 
know  the  general  character  of  Henry  H.  Kline, 
for  truth  and  veracity. 

Answer.    I  do. 

Question.    Is  it  good  or  bad,  sir  ? 
Answer.    It  is  good. 

Question.  Would  you  believe  him  on  his 
oath,  sir  ? 

Answer.    Yes,  sir. 

Question.  How  long  have  you  known  him, 
sir? 

Answer.  About  sixteen  years  I  have  known 
him,  but  for  the  last  twelve,  I  have  been  inti- 
mately acquainted  with  him. 

Question.    Where  do  you  reside  ? 

Answer.    51  Wood  Street. 

Question.  Were  you  formerly  a  Clerk  of  the 
Court  of  Quarter  Sessions  in  this  County  ? 

Answer.    Yes,  sir. 

Mr.  Read.    What  is  your  present  business  ? 

Answer.    A  constable. 

F.  M.  Adams  is  called  and  sworn. 

Mr.  G.  L.  Ashmead.  Mr.  Adams.  Do  you 
know  the  general  character  of  Henry  H.  Kline 
for  truth  and  veracity  ? 

Answer.    I  think  I  do,  sir. 

Question.    Is  it  good  or  bad,  sir  ? 

Answer.    I  believe  it  is  good. 

Question.  Would  you  believe  him  on  his  oath, 
sir  ? 

Answer.    I  would. 

Question.  How  long  have  you  known  him, 
sir? 

Answer.    About  six  years. 
Question.    Are  you  a  member  of  the  bar  of 
the  City  of  Philadelphia  ? 
Answer.    Yes,  sir. 
Not  cross-examined. 

Mr.  C.  B.  F.  O'Neill  is  called  and  sworn. 

Mr.  G.  L.  Ashmead.  Mr.  O'Neill,  do  you 
know  the  general  character  of  Henry  H.  Kline 
for  truth  and  veracity  ? 


Answer.    I  do. 

Question.    Is  it  good  or  bad,  sir  ? 

Answer.  I  never  heard  it  impeached,  until  I 
saw  it  in  the  paper  last  evening,  or  the  evening 
before. 

Question.  Would  you  believe  him  on  his  oath, 
sir? 

Answer.    I  certainly  would. 
Question.    How  long  have  you  known  him, 
sir? 

Answer.  I  have  known  him  nineteen  years 
this  month. 

Question.  Are  you  a  member  of  the  bar  of 
this  city  ? 

Answer.  I  have  been  a  member  of  the  bar, 
sir,  all  that  time. 

Not  cross-examined. 

Aaron  Green  is  called  and  sworn. 

Mr.G.L.Ashmead.  Mr.  Green  do  you  know 
the  general  character  of  Henry  H.  Kline  for  truth 
and  veracity  ? 

Answer.    I  do,  sir. 

Question.    Is  it  good  or  bad,  sir  ? 

Answer.  Good. 

Question.  Would  you  believe  him  on  his 
oath,  sir  ? 

Answer.    I  would. 

Question.  How  long  have  you  known  him, 
sir? 

Answer.  In  the  neighborhood  of  seven  or 
eight  years. 

James  Barber  is  called  and  sworn. 

Mr.  G.  L.  Ashmead.  Mr.  Barber  do  you 
know  the  general  character  of  Henry  H.  Kline 
for  truth  and  veracity  ? 

Answer.    I  do,  sir. 

Question.    Is  it  good  or  bad,  sir  ? 

Answer.  I  never  heard  it  questioned  till  this 
case  was  brought  up. 

Question.  Would  you  believe  him  on  his  oath, 
sir? 

Answer.    I  would,  sir. 

Question.  How  long  have  you  known  him, 
sir? 

Answer.    Between  six  and  seven  years. 
Mr.  Read.    What  is  your  business  ? 
Answer.    I  am  a  constable  of  Lower  Delaware 
ward. 

James  Brown,  Sr.  is  called  and  sworn. 

Mr.  G.  L.  Ashmead.  Mr.  Brown  do  you 
know  the  general  character  of  Henry  H.  Kline 
for  truth  and  veracity  ? 

Answer.    I  do. 

Question.    Is  it  good  or  bad,  sir  ? 
Answer.  Good. 

Question.  Would  you  believe  him  on  his  oath, 
sir? 

Answer.    I  would. 

Question.  How  long  have  you  known  him, 
sir? 

Answer.    Some  five  or  six  years. 
Mr.  Read.    You  keep  the  Democratic  Head 
Quarters,  do  you  not,  sir  ? 
Answer.    Yes,  sir. 

Mr.  G.  L.  Ashmead.  Stop,  that  is  no  reproach. 
Witness.    If  it  is  a  reproach  there  are  a 
great  many  who  deserve  it  as  well  as  myself. 
John  H.  Moore  is  called  and  sworn. 


UNITED  STATES  V.  HANWAY. 


153 


Mr.  G.  L.  Ashmead.  Mr.  Moore  do  you  know 
the  general  character  of  Henry  H.  Kline  for  truth 
and  veracity  ? 

Answer..    Yes,  sir. 

Question.  Would  you  believe  him  on  his 
oath,  sir? 

Answer.    I  would. 

Question.  How  long  have  you  known  him,  sir  ? 
Answer.    About  twenty  years. 
Mr.  Read.    "What  is  your  business? 


A  house-painter. 

What  are  you  now  ? 
I  am  a  police-officer. 

You  never  acted  ? 
No,  sir. 

Did  you  never  go  with  an  exhibi- 


Answer. 
Question. 
Answer. 
Question. 
Answer. 
Question. 
tion  ? 

Answer     No,  sir. 
Daniel  Weyman  is  called  and  sworn- 
Mr.  G.  L.  Ashmead.    Mr.  Weyman  do  you 
know  the  general  character  of  Henry  H.  Kline 
for  truth  and  veracity  ? 
Answer.    I  do,  sir. 
Question.    Is  it  good  or  bad,  sir  ? 
Good. 

Would  you  believe  him  on  his 


Answer. 
Question. 
oath,  sir? 
Answer. 
Question. 
Answer. 


I  would,  sir. 

How  long  have  you  known  him,  sir  ? 
Seventeen  or  eighteen  years. 
(No  cross-examination.) 
Thomas  Connell  is  called  and  affirms. 
Mr.  Ashmead.    Mr.  Connell  do  you  know  the 
general  character  of  Henry  H.  Kline  for  truth 
and  veracity  ? 

Answer.    I  do,  sir. 

Question.    Is  it  good  or  bad,  sir  ? 

Answer.  Good. 

Question.  Would  you  believe  him  on  his  oath, 
sir  ? 

Answer.    I  would,  sir. 

Question.  How  long  have  you  known  him,  sir  ? 

Answer.    About  twenty-five  years. 

No  cross-examination. 

John  Martin  is  called  and  sworn. 

Mr.  G.  L.  Ashmead.  Mr.  Martin  do  you  know 
the  general  character  of  Henry  H.  Kline  for  truth 
and  veracity  ? 

I  do,  sir. 

Is  it  good  or  bad,  sir  ? 
I  consider  it  good. 
Would  you  believe  nim  on  his 


Answer. 
Question. 
Answer. 
Question. 
oath,  sir  ? 
Answer. 
Question. 
Answer. 
Mr.  Read. 


I  would. 

How  long  have  you  known  him,  sir  ? 
About  thirteen  years. 

You  say  you  consider  it  good, 
have  you  not  heard  his  character  doubted  ? 

Answer.  I  have  heard  a  great  many  gentle- 
men's characters  doubted.  I  say  with  regard  to 
his,  I  nave  no  right  to  believe  what  I  hear  from 
other  people. 

Question.    Do  you  speak  of  your  personal 
knowledge  ? 

Answer.    The  last  couple  of  days  I  have 
heard  persons  speak  about  it,  but  never  prior. 

Mr.  Cuyler.    You  say  you  have  no  right  to 
believe  what  other  people  say. 

20 


Answer.    No,  sir. 

Mr.  Brent.  What  do  mean  when  you  say, 
you  heard  him  spoken  of  this  last  couple  of 
days  ? 

Answer.  I  have  heard  him  in  conversation 
call  names  that  I  do  not  consider  proper. 

Question.  His  general  character  before  the 
this  trial  has  been  good  ? 

Answer.    Yes,  sir,  it  is  good. 
Robert  L.  Currey  is  called  and  sworn. 
Mr.  G.  L.  Ashmead.    Mr.  Currey,  do  you 
know  the  general  character  of  Henry  H.  Kline, 
for  truth  and  veracity  ? 
Answer.    Yes,  sir. 

Is  it  good  or  bad  ? 
Good. 

Would  you  believe  him   on  his 


Question. 
Answer. 
Question. 
oath  ? 
Answer. 
Question. 
Answer. 


I  would. 

How  long  have  you  known  him  ? 
Thirteen  or  fourteen  years. 
E.  J.  Charnley  is  called  and  sworn. 
Mr.  G.  L.  Ashmead.    Mr.  Charnley,  do  you 
know  the  general  character  of  Henry  H.  Kline, 
for  truth  and  veracity  ? 
Answer.    I  do. 
Question.  Is  it  good  or  bad  ? 
Answer.  Good. 

Question.  Would  you  believe  him  on  his 
oath? 

Answer.  I  would. 

Question.  How  long  have  you  known  him  ? 
Answer.  Thirteen  or  fourteen  years. 
Mr.  Read.  What  is  your  business,  by  which 
you  earn  a  livelihood  ? 

Answer.  I  am  a  clerk,  sir. 
Question.  Nothing  else,  sir  ? 
Answer.  No,  sir. 

Question  Nothing  else  at  night,  sir  ? 

Answer.  I  have  had  some  business,  but  I  am 
not  in  it  at  present. 

Mr.  H.  A.  Davis  is  called  and  affirmed. 

Mr.  G.  L.  Ashmead.  Mr.  Davis,  do  you  know 
the  general  character  of  Henry  H.  Kline,  for 
truth  and  veracity  ? 

Answer.  Yes,  sir. 

Question.  Is  it  good  or  bad  ? 

Answer.  Good. 

Question.  Would  you  believe  him  on  his  oath  ? 
Answer.  I  would. 

Question.  How  long  have  you  known  him  ? 
Answer.  From  ten  to  twelve  years. 
Question.  Are  you  one  of  the  sworn  interpret- 
ers for  the  city  and  county  of  Philadelphia  ? 
Answer.  I  am,  sir. 

Mr.  Read.  Have  you  ever  attended  in  the 
Court  of  Quarter  Sessions  before  Judge  Kelley  as 
interpreter  ? 

Answer.    I  have,  sir. 

Question.  Have  you  ever  seen  Henry  H. 
Kline  there  as  a  witness,  when  Judge  Kelley  was 
on  the  bench  ? 

Answer.  I  might  have  seen,  I  don't  remem- 
ber. 

David  L.  Wilson  is  called  and  sworn. 
Mr.  G.  L.  Ashmead.    Mr  Wilson,  do  you 
know  the  general  character  of  Henry  H.  Klin© 
for  truth  and  veracity  ? 


154 


TREASON  CASES. 


Answer.    Yes,  sir. 

Question.    Is  it  good,  or  bad  ? 

Answer.  Good. 

Question.  Would  you  believe  him  on  his 
oath? 

Answer.    I  would. 

Question.    Hoav  long  have  you  known  him  ? 
Answer.     Between  twenty  and  twenty-five 
years. 

Mr.  Lewis.  What  is  your  trade  ? 

Answer.  I  am  a  carriage-driver.  I  own  the 
carriage  I  drive. 

Mr.  Read.  Has  Mr.  Kline  been  a  witness  for 
you  in  any  criminal  suit  ? 

Answer.    Never,  sir. 

Jacob  Dubler  is  called,  and  sworn. 

Mr.  G.  L.  Ashmead.  Mr.  Dubler,  do  you 
know  the  general  character  of  Henry  H.  Kline 
for  truth  and  veracity  ? 

Answer.    Yes,  sir. 

Question.    Is  it  good  or  bad  ? 

Answer.  Good. 

Question.  Would  you  believe  him  on  his 
oath  ? 

Answer.    Yes,  sir. 

Question.    How  long  have  you  known  him  ? 
Answer.  Twenty  years,  or  upwards. 
Not  cross-examined. 

Charles  Brown  is  called,  and  makes  no  answer. 

John  M'Elroy  is  called,  and  sworn. 

Mr.  G.  L.  Ashmead.  Mr.  M'Elroy,  do  you 
know  the  general  character  of  Henry  H.  Kline 
for  truth  and  veracity  ? 

Answer.    I  do. 

Question    Is  it  good  or  bad  ? 

Answer.  Good. 

Question  Would  you  believe  him  on  his 
oath  ? 

Answer.    I  would. 

Question.     How  long  have  you  known  him  ? 
Answer.    Ten  years,  and  upwards. 
Mr.  Read.    What  is  your  business,  Mr.  M'El- 
roy ? 

Answer.    I  am  a  clerk,  a  book-keeper. 

John  W.  Stanroop  is  called,  and  sworn. 

Mr.  G.  L.  Ashmead.  Mr.  Stanroop,  do  you 
know  tbe  general  character  of  Henry  H.  Kline 
for  truth  and  veracity  ? 

Answer.    I  do,  sir. 

Question.    Is  it  good,  or  bad  ? 

Answer.  Good. 

Question.  Would  you  believe  him  on  his 
oath? 

Answer.  I  would,  sir,  as  quick  as  any  other 
man. 

Question.    How  long  have  you  known  him  ? 

Answer.    About  five  years. 

No  cross-examination. 

Egbert  Sumnerdvke  is, called,  and  sworn. 

Mr.  G.  L.  Ashmead.  Mr.  Sumnerdyke.  do 
you  know  the  general  character  of  Henry  H. 
Kline  for  truth  and  veracity  ? 

Answer.    I  do,  sir. 

Question.    Is  it  good  or  bad? 

Answer.  Good. 

Question.  Would  you  believe  him  on  his 
oath  ? 

Answer.    I  would,  sir. 


Question.    How  long  have  you  known  him  ? 

Answer.    Thirteen  years. 

Not  cross-examined. 

Nathan  Lucans  is  called  and  sworn. 

Mr.  G.  L.  Ashmead.  Mr.  Lucans,  do  you 
know  the  general  character  of  Henry  H.  Kline 
for  truth  and  veracity  ? 

Answer.    I  believe  I  do 

Question.    Is  it  good  or  bad  ? 

Answer.    It  is  good. 

Question.  Would  you  believe-  him  on  his 
oath  ? 

Answer.    Yes,  sir. 

Question.    How  long  have  you  known  him  ? 
Answer.    I  have  known  him  upwards  of  twen- 
ty years. 

Not  cross-examined. 

Lafayette  Stainroop  is  called,  and  sworn. 

Mr.  G.  L.  Ashmead.  Mr.  Stainroop,  do  you 
know  the  general  character  of  Plenry  H.  Kline 
for  truth  and  veracity  ? 

Answer.    I  do,  sir. 

Question.    Is  it  good  or  bad  ? 

Answer.  Good. 

Question.  Would  you  believe  him  on  his 
oath  ? 

Answer.    I  would. 

Question.    How  long  have  you  known  him  ? 

Answer.    From  six  to  seven  years. 

Not  cross-examined. 

Thomas  Downing  is  called,  and  sworn. 

Mr.  G.  L.  Ashmead.  Mr.  Downing,  do  you 
know  the  general  character  of  Henry  H.  Kline 
for  truth  and  veracity  ? 

Answer.    I  do,  sir. 

Question.    Is  it  good  or  bad  ? 

Answer.  Good. 

Question.  Would  you  believe  him  on  his 
oath,  sir  ? 

Answer.    Yes,  sir. 

Question.  How  long  have  you  known  him, 
sir  ?  ' 

Answer.    Twenty  years  and  more. 

No  cross-examination. 

W.  D.  Hazelett  was  called  and  sworn 

Mr.  G.  L.  Ashmead.  Mr.  Hazelett,  do  you 
know  the  general  character  of  Henry  H.  Kline, 
for  truth  and  veracity  ? 

Answer.    Yes,  sir. 

Question.    Is  it  good  or  bad,  sir? 

Answer.    It  is  good. 

Question.  Would  you  believe  him  on  his 
oath,  sir? 

Answer.    I  would. 

Question.  How  long  have  you  known  him, 
sir? 

Answer.  I  should  judge  some  eighieen  years. 

No  cross-examination. 

Daniel  D.  Emerick  is  called  and  sworn. 

Mr.  G.  L.  Ashmead.  Mr.  Emerick,  do  you 
know  the  general  character  of  Henry  H.  Kline, 
for  truth  and  veracity  ? 

Answer.    I  do,  sir. 

Question.    Is  it  good  or  bad,  sir  ? 

Answer.    It  is  good. 

Question.  Would  you  believe  him  on  his 
oath,  sir  ? 

I    Answer.    I  would. 


UNITED  STATES  V.  HANWAY. 


155 


Question.  How  long  have  you  known  him, 
sir  ? 

Answer.    At  least  ten  years. 

Question.    At  least  ten  years  ? 

Answer.  Yes. 

No  cross-examination. 

Mr.  D.  W.  Keckafus,  is  called  and  sworn. 

Mr.  G.  L.  Ashmead.  Mr.  Keckafus,  do  yon 
know  the  general  character  of  Henry  H.  Kline, 
for  truth  and  veracity  ? 

Answer.    I  do. 

Question.    Is  it  good  or  bad.  sir  ? 
Answer.    It  is  good. 

Question.  Would  you  believe  him  on  his 
oath,  sir? 

Answer.    I  would  assuredly. 

Question.  How  long  have  vou  known  him. 
sir  I 

Answer.    I  have  known  him  from  his  boy-  ] 
hood,  but  more  particularly  and  intimately  for 
the  last  five  or  six  years. 

Not  cross-examined. 

James  Pidgeon,  is  called  and  sworn. 

Me.  Gr.  L.  Ashmead.  Mr.  Pidgeon,  do  you 
know  the  general  character  of  Henry  H.  Kline, 
for  truth  and  veracity  ? 

Answer.    I  do,  sir. 

Question.    Is  it  good  or  bad,  sir  ? 

Answer.    It  is  good,  sir. 

Question.  Would  you  believe  him  on  his 
oath,  sir? 

Answer.    I  would,  sir? 

Question.  How  long  have  you  known  him, 
sir  ? 

Answer.    About  ten  years. 

Mr.  Read.    Do  you  keep  tavern  now,  sir  ? 

Answer.    No,  sir  ;  I  have  not  for  many  years. 

Albert  G.  Stevens  is  called  and  sworn. 

Mr.  G.  L.  Ashmead.  Mr.  Stevens,  do  you  know 
the  general  character  of  Henry  H.  Kline,  for 
truth  and  veracity  ? 

Answer.    I  do,  sir. 

Question.    Is  it  good  or  bad,  sir  ? 

Answer.  Good  as  far  as  I  know.  I  have 
never  heard  any  thing  bad  about  him. 

Question.  Would  you  believe  him  on  his 
oath,  sir? 

Answer.    Yes,  sir. 

Question.  How  long  have  you  known  him. 
sir  ? 

Answer.  I  have  known  him  off  and  on  for 
the  last  ten  or  fifteen  years,  perhaps  twenty; 
not  quite  so  long  as  that,  ten  years  at  least. 

Not  cross-examined. 

James  Brown,  jr.,  is  called  and  sworn. 

Me.  G.  L  Ashmead.  Mr.  Brown,  do  you 
know  the  general  character  of  Henry  H.  Kline, 
for  truth  and  veracity  ? 

Answer.    I  do,  sir. 

Question.    Is  it  good  or  bad,  sir  ? 

Answer.  Good. 

Question.  Would  you  believe  him  on  his 
oath,  sir  ? 

Answer.    I  would,  sir  ? 

Question.  How  long  have  you  known  him,  sir  ? 
Answer.    Between  five  and  six  years. 
Mr.  Plead.    You  are  a  son  of  James  Brown, 
Sr.,  are  you  not  ? 


I     Answer.    Yes,  sir. 

David  Yicely,  called  and  sworn. 
Mr.  G.  L.  Ashmead.     Mr.  Yicely,  do  yon 
know  the  general  character  of  Henry  H.  Kline, 
for  truth  and  veracity  ? 
Answer.    I  do,  sir. 
Question.    Is  it  good,  or  bad,  sir? 
Answer.    It  is  good. 

Question.  Would  you  believe  him  on  his 
oath  ? 

Answer.    I  would. 

Question.    How  long  have  you  known  him  ? 
Answer.    Upward  of  sixteen  years. 
Not  cross-examined. 
Wm,  L.  Gray  is  called  and  sworn. 
Mr.  G.  L.  Ashmead.    Mr.  Gray,  do  you  know 
1  the  genei-al  character  of  Henry  H.  Kline,  for 
truth  and  veracity  ? 
Answer.    I  do,  sir. 
Question.    Is  it  good  or  bad  ? 
Answer.  Good. 

Question.    Would  you  believe  him  on  his 
oath  ? 
Answer.    Yes,  sir. 

Question.    How  long  have  you  known  him  ? 
Answer.    About  eleven  years. 
Not  cross-examined. 
John  Selets  is  called  and  sworn. 
Mr.  G.  L.  Ashmead.   Mr.  Selets,  do  you  know 
the  general  character  of  Henry  H.  Kline,  for 
truth  and  veracity  ? 
Answer.    I  do,  sir. 
Question.    Is  it  good  or  bad  ? 
Answer.    Good,  sir. 

Question.  Would  you  believe  him  on  his 
oath  ? 

Answer.    I  would,  sir. 
Question.    How  long  have  you  known  him  ? 
Answer.    Seven  years. 
Not  cross-examined. 
Henry  Cornish  is  called  and  sworn. 
Mr.  G.  L.  Ashmead.    Mr.  Cornish,  do  you 
know  the  general  character  of  Henry  H.  Kline, 
for  truth  and  veracity  ? 
Answer.    I  do,  sir. 
Question.    Is  it  good  or  bad  ? 
Answer.  Good. 

Question.  Would  you  believe  him  on  his 
oath  ? 

Answer.    I  would,  sir. 
Question.    How  long  have  you  known  him  ? 
Answer.    I  have  known  him  for  about  twelve 
or  fifteen  years. 

Question.    Twelve  or  fifteen  years  you  say  ? 
Answer.    Fourteen,  or  along  there,  sir. 
Not  cross-examined. 
Samuel  Babb  is  called  and  sworn. 
Mr.  G.  L.  Ashmead.    Mr.  Babb,  do  you  know 
the  general  character  of  Henry  H.  Kline,  for 
truth  and  veracity  ? 
Answer.    Yes,  sir. 
Question.    Is  it  good  or  bad  ? 
Answer.  Good. 

Question.  Would  you  belies  nim  on  his  oath  ? 
Answer.    Yes,  sir,  I  would. 
Question.    How  long  have  you  known  him  ? 
Answer.    Between  seventeen  and  eighteen 


156 


TREASON  CASES. 


!Not  cross-examined. 

Thos.  Wallace  is  called  and  sworn. 

Mr.  G.  L.  Ashmead.  Mr.  Wallace,  do  you 
know  the  general  character  of  Henry  H.  Kline, 
for  truth  and  veracity  ? 

Answer.    Yes,  sir. 

Question.    Is  it  good  or  bad? 

Answer.  Good. 

Question.  Would  you  believe  him  on  his 
oath? 

Answer.    I  would,  sir. 

Question.    How  long  have  you  known  him  ? 

Answer.  In  the  neighborhood  of  from  18  to 
20  years. 

Not  cross-examined. 

John  C.  Lamb  is  called  and  sworn. 

Mr.  G.  L.  Ashmead.  Mr.  Lamb,  do  you 
know  the  general  character  of  Henry  H.  Kline, 
for  truth  and  veracity  ? 

Answer.    I  do. 

Question.    Is  it  good  or  bad  ? 

Answer.  Good. 

Question.  Would  you  believe  him  on  his 
oath  ? 

Answer.    Yes,  sir. 

Question.    How  long  have  you  known  him  ? 

Answer.    Upwards  of  thirty  years. 

Not  cross-examined. 

Wm.  Roy  is  called  and  sworn. 

Mr.  G.  L.  Ashmead.  Mr.  Roy,  do  you  know 
the  general  character  of  Henry  H.  Kline,  for 
truth  and  veracity  ? 

Answer.    I  do. 

Question.    Is  it  good  or  bad? 

Answer.    It  is  good. 

Question.  Would  you  believe  him  on  his 
oath  ? 

Answer.    Yes,  sir. 

Question.    How  long  have  you  known  him? 

Answer.    I  suppose  ten  years. 

Mr.  Read.  Do  you  keep  a  public  house,  Mr. 
Roy? 

Answer.    Yes,  sir. 

Joseph  A.  Nunes  is  called. 

Mr.  Nunes.  Will  your  honors  allow  mc  to  say. 
that  though  a  member  of  the  Bar,  I  was  detained 
fifteen  minutes,  when  there  was  plenty  of  room  for 
us  all  to  be  seated,  and  there  are  other  members 
of  the  bar  who  cannot  get  in  as  well. 

Officer.    We  had  no  room,  sir. 

Judge  Grier.  If  they  are  members  of  the 
Bar,  of  course  they  will  be  allowed  to  come  in. 

Joseph  A.  Nunes  is  sworn. 

Mr.  G.  L.  Ashmead.  Mr.  Nunes,  do  you 
know  the  general  character  of  Henry  H.  Kline, 
for  truth  and  veracity  ? 

Answer.    I  think  I  do,  sir. 

Question.    Is  it  good  or  bad  ? 

Answer.    I  consider  it  to  be  be  good,  sir. 

Question.  Would  you  believe  him  on  his  oath, 
sir  ? 

Answer.    I  would,  sir. 

Question.    Are  you  a  member  of  the  Bar  of 
this  city,  sir  ? 
Answer.    I  am. 

Mr.  Read.    Have  you  not  heard  the  character 
of  Henry  H.  Kline  doubted  and  questioned  ? 
Answer.    Not  until  this  trial,  not  for  truth 


and  veracity.  I  have  heard  remarks  made  about 
him  but  not  in  reference  to  truth  and  veracity. 

Mr.  Read.    In  what  respect  ? 

Mr.  G.  L.  Ashmead.  I  object  to  any  thing 
not  connected  with  truth  and  veracity,  if  we  had 
known  we  should  be  required  to  examine  as  to 
any  other  point,  I  will  simply  state  that  we  should 
have  had  just  as  many  witnesses  prepared  as  on 
this  point. 

Mr.  Read.  Have  you  been  present,  in  the 
Court  of  Quarter  Sessions,  before  Judge  Kelley, 
when  he  was  called  and  examined  as  a  witness  ? 

Answer.    Not  that  I  recollect. 

Question.    Tax  your  recollection. 

Answer.  I  think  not,  sir.  I  am  not  positive 
however,  I  have  no  recollection  of  it. 

Joseph  Abrams  is  called  and  sworn. 

Mr.  G.  L.  Ashmead.  Mr.  Abrams,  do  you 
know  the  general  character  of  Henry  H.  Kline 
for  truth  and  veracity  ? 

Answer.    Yes,  sir,  I  think  I  do. 

Question.    Is  it  good  or  bad? 

Answer.    Generally  good. 

Question.   Would  you  believe  him  on  his  oath? 

Answer.    Yes  sir. 

Mr.  Read.  Have  you  been  present  at  the 
Court  of  Quarter  Sessions  at  any  time,  before 
Judge  Kelley.  at  any  case  in  which  Henry  H. 
Kline  was  a  witness  ? 

Answer.    No,  sir. 

Question.  Just  tax  your  recollection,  will 
you,  sir  ? 

Answer.    Not  that  I  can  recollect,  sir 
Question.    What  do  you  mean  by  generally 

good  ? 

Answer.  I  mean  by  that  what  I  have  heard 
persons  say. 

Question.  Then  you  have  heard  persons  say 
otherwise,  have  you  not  ? 

Answer.  Yes,  sir. 

Mr.  G.  L.  Ashmead.    Are  you  a  member  of 

the  Bar  of  this  city  ? 
Answer.  Yes,  sir. 

Question.  And  I  think  you  say,  that  not- 
withstanding what  you  have  heard,  you  would 
believe  him  on  his  oath  ? 

Answer.    Yes,  sir. 

Michael  Barr  is  called  and  sworn. 

Mr.  G.  L.  Ashmead.  Mr.  Barr,  do  you  know 
the  general  character  of  Henry  H.  Kline  for 
truth  and  veracity  ? 

Answer.    I  do. 

Question.    Is  it  good  or  bad  ? 

Answer.  Good. 

Question.  Would  you  believe  him  on  his  oath  ? 
Answer.    I  would. 

Question.    How  long  have  you  known  him  ? 

Answer.    Some  three  or  four  years. 

Mr.  Read.    Where  do  you  keep  tavern,  sir  ? 

Answer.    At  95  North  3rd  street. 

Question.    In  what  ward,  sir  ? 

Answer.    In  Lower  Delaware  Ward. 

Question.    How  far  from  Alderman  Brazier's  ? 

Answer.    Two  or  three  squares. 

William  W.  Hankinson,  called  and  affirmed. 

Mr.  G.  L.  Ashmead.  Mr.  Hankinson,  do  you 
know  the  general  character  of  Henry  H.  Kline 
for  truth  and  veracity  ? 


UNITED  STATES  V.  HANWAY. 


157 


Answer.    I  do,  sir. 
Question.    You  do  ? 
Answer.    Yes,  sir. 
Question.    Is  it  good  or  bad? 
Answer.    Good  sir. 

Question.  Would  you  believe  him  on  his  oath  ? 
Answer.    I  would  sir 

Question.    How  long  hare  you  known  him  ? 

Answer.    Upwards  of  20  years. 

Not  cross-examined. 

Charles  H.  Lex  is  called  and  sworn. 

Mr  G.  L.  Ashmead.  Mr.  Lex,  do  you  know 
the  general  character  of  Henry  H.  Kline  for  truth 
and  veracity  ? 

Answer.    I  do. 

Question.    Is  it  good  or  bad  ? 

Answer.  Good. 

Question.  Would  you  believe  him  on  his  oath? 
Answer.    Yes,  sir. 

Question.    How  long  have  you  known  him  ? 
Answer.    From  12  to  II  years. 
Not  cross-examined. 

Thomas  E.  Connell,  Jr.,  is  called  and  sworn. 

Mr.  G.  L.  Ashmead.  Mr.  Connell,  do  you 
know  the  general  character  of  Henry  H.  Kline 
for  truth  and  veracity  ? 

Answer.    I  do. 

Question.    Is  it  good  or  bad  ? 

Answer.    It  is  good. 

Question.    Would  you  believe  him  on  his  oath  ? 

Answer.    I  would,  undoubtedly. 

Question.    How  long  have  you  known  him  ? 

Answer.    I  have  known  him  for  6  or  7  years. 

Not  cross-examined. 

Joseph  L.  Thomas,  is  called  and  sworn. 

Mr.  G.  L.  Ashmead.  Mr.  Thomas,  do  you 
know  the  general  character  of  Henry  II.  Kline 
for  truth  and  veracity  ? 

Answer.    Yes,  sir,  I  believe  I  do. 

Question.    Is  it  good  or  bad  ? 

Answer.    I  believe  it  to  be  good,  sir. 

Question.    Would  you  believe  him  on  his  oath  ? 

Answer.    I  would,  sir. 

Question.    Are  you  a  member  of  the  Bar  of 
this  city,  Mr.  Thomas  ? 
Answer.    Yes,  sir. 

Mr.  Read.  Mr.  Thomas,  have  you  been  in 
the  Court  of  Quarter  Sessions  before  Judge  Kel- 
ley,  when  Mr.  Kline  was  examined  as  a  witness  ? 

Answer.  I  never  had  the  honor  of  being  in 
the  Court  of  Quarter  Sessions  as  counsel,  but  I 
have  been  there  as  a  by-stander. 

Question.  Have  you  been  there  when  he  was 
examined  as  a  witness. 

Answer.    I  think  not,  sir. 
j   Question.    Have  you  never  heard  of  him  as  a 
witness  ? 

Answer.  I  never  heard  anybody  say  any  thing 
about  his  being  a  witness. 

Question.  You  never  heard  of  his  being  a 
witness  ? 

Answer.  No,  sir,  I  never  heard  of  his  being 
a  witness  in  my  life,  sir.  I  will  merely  say  that 
I  have  only  heard  his  name  mentioned  as  a  wit- 
ness in  this  case. 

Mr.  Read.  I  only  wanted  to  know  about  his 
general  character.  As  a  police  officer  I  thought 
you  might  have  heard  of  him. 


William  Connell  is  called  and  sworn. 
Mr.  G.  L.  Ashmead.    Mr.  Connell,  do  you 
I  know  the  general  character  of  Henry  H.  Kline, 
for  truth  and  veracity  ? 
|     Answer.    I  do. 

Is  it  good  or  bad  ? 
Good. 

"Would  you  believe  him  on  his 


I  would  undoubtedly. 

How  long  have  you  known  him  ? 
I  have  known  him   about  eight 


Question. 
Answer. 
Question. 
oath. 
Answer. 
Question. 
Answer. 
years. 

Mr.  Read.  What  is  your  business,  Mr.  Con- 
nell ? 

Answer.    I  am  a  gas-fitter. 

Joseph  S.  Brewster  is  called  and  sworn. 

Mr.  G.  L.  Ashmead.  Mr.  Brewster,  do  you 
know  the  general  character  of  Henry  II.  Kline, 
for  truth  and  veracity  ? 


Answer. 

Question. 

Answer. 

Question. 
oath  ? 

Answer. 

Question. 
this  city,  sir. 

Answer. 

Mr.  Read. 


Yes,  sir. 
Is  it  good  or  bad  ? 
Good. 

Would  you  believe  him 


his 


I  would,  sir. 
Are  you  a  member 


of  the  Bar  of 


Yes,  sir. 

Mr.  Brewster,  have  you  been  in 
the  Court  of  Quarter  Sessions  before  Judge  Kelley 
when  Henry  II.  Kline  was  before  him  as  a  wit- 
ness. 

Answer.  I  have  been  in  the  Court  of  Quarter 
Sessions  many  times  when  he  was  a  witness,  but 
I  do  not  recollect  whether  Judge  Kelley  presided. 
I  have  heard  him  examined. 

Question.  You  have  never  heard  any  thing 
against  his  character  for  veracity  ? 

Answer.  No,  sir,  not  against  his  character 
for"  veracity,  until  I  saw  this  in  the  paper  this 
morning. 

Edgar  E.  Petit  is  called  and  sworn. 
Mr.  G.  L.  Ashmead.    Mr.  Petit,  do  you  know 
the  general  character  of  Henry  H.  Kline,  for 
truth  and  veracity  2 

Answer.    I  think  I  do,  sir. 

Is  it  good  or  bad  ? 
Good,  sir. 
Would  you  believe  him  on  his  oath, 


I  would,  undoubtedly. 
Are  you  a  member  of  the  bar  of 


Question. 

Answer. 

Question. 
sir  ? 

Answer. 

Question. 
this  city,  sir  ? 

Answer.    I  am,  sir. 

No  cross-examination. 

William  E.  Lehman,  Jr.  is  called  and  sworn. 
Mr.  G.  L.  Ashmead.  Mr.  Lehman  do  you  know 
the  general  character  of  Henry  H.  Kline  for 
truth  and  veracity  ? 
Answer.    Yes,  sir. 
Question.    Is  it  good  or  bad,  sir  ? 
Good,  sir. 
Would  you  believe  him  on  his  oath, 


Answer. 
Question. 
sir  ? 

Answer. 
Question. 


I  this  city,  sir  ? 


Yes,  sir. 

Are  you  a  member  of  the  bar  of 


158  TREASON 


Answer.    Yes,  sir. 

Not  cross-examined. 

Dr.  Vondersmith  is  called  and  sworn. 

Me,.  G.  L.  Ashmead.  Dr.  Vondersmith,  do 
you  know  the  general  character  of  Henry  H. 
Kline  for  truth  and  veracity  ? 

Answer.    I  do,  sir. 

Question.    Is  it  good  or  bad  ? 

Answer.  Good. 

Question.  Would  you  believe  him  on  his  oath, 
sir  ? 

Answer.    I  would,  sir. 

Question.  How  long  have  you  known  him, 
sir? 

Answer.    About  three  years. 

Alderman  John  A.  White  is  called  and  affirmed. 

Mr.  G.  L.  Ashmead.  Alderman  White,  do  you 
know  the  general  character  of  Henry  H.  Kline 
for  truth  and  veracity  ? 

Answer.  I  think  I  have  known  him  for  a 
number  of  years. 

Question.    Is  it  good  or  bad,  sir  ? 

Answer.  Good. 

Question.  Would  you  believe  him  on  his  oath, 
sir? 

Answer.    I  would,  yes  sir. 
Question.    Are  you  an  Alderman  ? 
Answer.    Yes,  sir. 
Mr.  Read.    In  Locust  ward,  sir  ? 
Answer.    Yes,  sir. 

Question.    How  far  from  Mr.  Ingrahani's  ? 

Answer.    About  two  squares. 

Charles  P.  Buckingham,  is  called  and  sworn. 

Mr.  G.  L.  Ashmead.  Mr.  Buckingham  do 
you  know  the  general  character  of  Henry  H. 
Kline  for  truth  and  veracity  ? 

Answer.    I  do. 

Question.    Is  it  good  or  bad,  sir  ? 
Answer.  Good. 

Question.  Would  you  believe  him  on  his  oath, 
sir? 

Answer.    I  would. 

Question.  How  long  have  you  known  him, 
sir? 

Answer.    Over  ten  years. 

Not  cross-examined. 

Philip  Winnemore  is  called  and  sworn. 

Mr.  G.  L.  Ashmead.  Mr.  Winnemore  do  you 
know  the  general  character  of  Henry  H.  Kline  for 
truth  and  veracity  ? 

Answer.    I  do,  sir. 

Question.    Is  it  good  or  bad,  sir  ? 

Answer.    Good,  sir. 

Question.  Would  you  believe  him  on  his  oath, 
sir? 

Answer.    I  would,  sir. 

Question.  How  long  have  you  known  him, 
sir  ? 

Answer.  About  eight  years. 
Not  cross-examined. 

Randolph  Cottee  is  called  and  does  not  answer. 

John  C.  Smith  is  called  and  sworn. 

Mr.  G.  L.  Ashmead.  Mr.  Smith.  Do  you 
know  the  general  character  of  Henry  H.  Kline 
for  truth  and  veracity  ? 

Answer.    Yes,  sir.    I  think  I  do. 

Question.    Is  it  good  or  bad,  sir  ? 

Answer.    I  believe  it  is  good. 


CASES. 


Question.  Would  vou  believe  him  on  his  oath, 
sir  ? 

Answer.    Yes,  sir.    I  would. 
Question.    How  long  have  you  Known  him  ? 
Answer.    I  have  known  him  for  five  or  six 
years. 

Not  cross-examined. 
George  Carter  is  called. 

Judge  Grier.  Are  you  going  to  be  content 
with  the  odd  trick,  or  are  you  going  to  have 
two  to  one  ? 

Mr.  G.  L.  Ashmead.  We  have  already  gone 
to  seventy,  and  they  had  but  29,  and  we  have 
nearly  as  many  more 

Judge  Grier.  I  have  no  notion  to  interfere 
with  you.  Don't  allow  this  to  be  considered  as 
an  intimation  that  you  are  overdoing  the  busi- 
ness at  all.  You  shall  do  as  you  please.  I  was 
asking  merely  for  information.  Swear  the  wit- 
ness.   (Witness  is  sworn.) 

Mr.  G.  L.  Ashmead.  Mr.  Carter.  Do  you 
know  the  general  character  of  Henry  H.  Kline 
for  truth  and  veracity  ? 

Answer.  I  have  never  heard  a  word  against 
his  character,  neither  privately  nor  publicly. 

Question.  Would  you  believe  him  on  his  oath, 
sir  ? 

Answer.    I  would. 

Question.    How  long  have  you  known  him  1 
Answer.    Some  six  or  eight  years  probably. 
Mr.  Lewis.    Have  you  heard  anything  about 
it? 

Answer.  I  have  never  heard  his  character 
called  in  question. 

Mr.  G.  L.  Ashmead.  We  have  a  number  of 
other  witnesses  to  the  same  point,  but  we  will 
conclude  the  examination  of  witnesses  as  to  cha- 
racter for  the  United  States,  here. 

Judge  Grier.  I  would  suppose  that  two  to 
one  is  as  good  as  three,  or  four,  or  five  to  one  ; 
and  there  is  no  use  of  multiplying  them. 

Mr.  G.  L.  Ashmead.  We  will  therefore  con- 
clude the  examination  upon  this  point,  and  call 
witnesses  to  testify  as  to  other  facts,  sir.  I  will 
examine  one  more  witness  as  to  the  same  point 
that  we  have  been  examining  upon. 

Judge  Grier.  Very  good.  As  many  as  you 
please,  sir. 

Mr.  J.  P.  Loughead  is  called  and  sworn. 

Mr.  G.  L.  Ashmead.  Mr.  Loughead.  Do  you 
know  the  general  character  of  Henry  H.  Kline 
for  truth  and  veracity  ? 

Answer.  I  know  it  in  this  way,  sir.  I  never 
have  heard  his  character  for  truth  i and  veracity 
questioned,  that  I  know  of. 

Question.  Would  you  believe  him  on  his 
oath,  sir  ? 

Answer.    I  would,  sir. 

Question.  Were  you  recently  Deputy  District 
Attorney,  sir? 

Answer.    I  was  about  a  year  ago,  sir. 

Question.  How  long  did  you  occupy  that 
position,  sir  ? 

Answer.  I  think  about  two  years  or  eighteen 
months,  somewhere  in  that  neighborhood,  until 
the  District  Attorney  Bill  passed  the  Legislature. 

Mr.  Read.  I  suppose  you  are  speaking  of  his 
veracity  as  a  Police  Officer  ? 


UNITED  STATES  V.  HAXWAY. 


159 


Answer.  I  speak  of  his  veracity  generally, 
I  don't  understand  the  distinction. 

Question.  Do  you  usually  require  corrobo- 
rating testimony  ? 

Answer.  No,  sir ;  I  think  I  understand  you 
now.  I  usually  regard  the  testimony  of  Police 
Officers  (from  the  nature  of  their  business)  with 
a  little  more  care  than  the  testimony  of  another 
person  and  not  from  any,  (I  should  more  properly 
express  it)  not  from  any  distrust  of  the  integrity 
of  the  officer,  but  because,  as  my  friend  Mr. 
Brown  has  frequently  remarked,  (I  took  the  ex- 
pression from  him)  they  usually  come  with  a 
suspicion  in  one  eye  and  a  bench-warrant  in  the 
other. 

Question.  You  have  no  doubt  of  his  general 
integrity  upon  oath  ? 

Answer.  I  would  not  hesitate  to  believe  him, 
sir? 

George  Dyer  called  and  sworn. 

Mr.  G.  L.  Ashmead.  There  was  a  witness 
called  yesterday  by  the  name  of  Johnson,  who 
said  that  he  got  his  unfavorable  impression  of 
Mr.  Kline's  character  among  other  persons  from 
you,  or  declarations  made  by  you.  Will  you  be 
good  enough  to  state  whether  that  testimony  be 
correct  or  not  ? 

Answer.    It  was  false,  sir. 

Question.  You  never  stated  those  things  to 
him,  did  you  ? 

Answer.    No,  sir ;  I  never  did. 

Not  cross-examined. 

William  Noble  is  called  and  sworn. 

Judge  Grier.  Do  you  wish  the  United  States 
Attorney  to  state  what  they  intend  to  prove,  or 
why  they  offer  this  witness  ? 

Mr.  Read.  I  want  it  understood  what  they 
offer,  because  it  is  a  new  part  of  the  case,  and  I 
suppose  it  will  not  be  evidence. 

Judge  Grier.  State  why  you  offer  this  wit- 
ness ? 

Mr.  G.  L.  Ashmead.  I  offer  William  Noble 
(and  he  is  to  be  followed  by  several  other  wit- 
nesses to  the  same  point)  to  prove  that  in  the 
month  of  September,  1850,  in  the  county  of  Lan- 
caster, and  particularly  in  the  neighborhood  of 
Christiana,  was  patrolled  by  armed  bodies  of 
negroes,  after  a  report  that  slaveholders  had 
come  up  there  for  slaves.  That  these  armed 
bands  of  negroes  went  from  house  to  house  in 
that  neighborhood,  searching  for  the  slaveholders, 
swearing  vengeance  against  them,  and  expressing 
a  determination  to  kill  them. 

I  offer  this  testimony,  may  it  please  the  Court, 
for  the  purpose  of  proving  that,  for  a  long  period 
of  time,  there  has  been  a  regular  organization  for 
the  purpose  of  resisting,  upon  every  and  all  oc- 
casions, the  execution  of  the  laws  of  the  United 
States  in  that  neighborhood.  I  apprehend,  may 
it  please  the  Court,  that  this  is  not  testimony-in- 
chief;  even  if  it  was,  its  existence  was  not 
known  to  the  counsel  on  the  part  of  the  United 
States.  But  after  the  defence  had  opened  to  us 
this  point  we  prepared  to  refute  it  in  the  most 
overwhelming  manner. 

I  have  stated  to  the  Court  briefly  the  na- 
ture of  the  evidence  we  are  about  to  offer.  I 
have  stated  briefly  the  grounds  upon  which 


we  have  a  right  to  offer  it,  and  I  will  leave 
further  remarks  to  my  colleagues  on  this 
point. 

Mr.  Read.  This  is  perhaps  the  most  extraor- 
dinary offer  I  ever  heard  in  rebutting  testimony. 
It  is  an  offer  which  the  United  States  have  with- 
held until  the  case  of  the  defence  has  closed. 
They  knew  all  this  beforehand.  They  had  their 
witnesses  prepared.  It  formed  an  essential  part 
of  their  case,  because  they  have  attempted  (they 
did  not  open  that  they  could  prove)  and  it  is  par- 
ticularly essential  on  their  part  to  show  previous 
combination  for  the  purpose  of  proving  treason, 
and  yet  they  have  deliberately  withheld  it  from 
the  Court  for  the  express  purpose  of  bringing  it 
as  evidence  in  rebuttal.  Now  this  is  not  proper 
nor  fair  conduct  on  the  part  of  the  United  States.  It 
is  their  duty  (and  their  solemn  duty)  to  inform  the 
prisoner  of  all  the  charges  against  him,  or  those 
with  whom  he  may  be  connected,  by  which  he  is  to 
be  convicted  of  a  great  crime  against  the  United 
States.  But  knowing  all  these  facts,  and  having 
evidence  of  all  these  combinations  and  prepa- 
rations, they  have  deliberately  determined  never 
to  produce  it  as  a  part  of  their  own  case.  Now, 
may  it  please  your  honors,  I  say  that  this  is  un- 
precedented. This  is  unprecedented.  I  never 
heard  of  the  Commonwealth,  or  the  United  States, 
withholding  an  essential  part  of  their  case,  for  the 
express  purpose  of  bringing  it  in  on  the  rear  of 
the  •  defence,  which  the  prisoner's  counsel  may 
think  a  full  and  proper  one  to  the  charge  pre- 
sented against  them.  According  as  I  understand 
the  rulings  in  this  Court,  if  this  was  evidence  at 
all,  it  was  evidence-in-chief.  It  was  a  part  of 
their  own  case,  and  not  of  the  defence.  Why 
did  they  examine  on  the  stand  here,  with  regard 
to  previous  meetings,  and  with  regard  to  other 
anti-slavery  meetings. 

And  did  they  not  fail  entirely  in  the  whole  of 
their  proof?  Why  would  it  be  evidence  ?  I  refer 
to  the  case  of  Freas  and  the  Western  Insurgents, 
that  there  had  been  a  previous  combinations  of 
persons  of  the  country  connected  with  this  out- 
break and  which  showed  it  was  a  treasonable 
act.  That  is  their  case.  Is  it  our  case  ?  Not 
at  all. 

Have  we  attempted  to  prove  any  thing  of  the 
kind  ?  Not  at  all.  Have  we  given  a  single  iota 
on  the  subject?  Not  at  all.  We  have  confined 
our  case  simply  and  strictly  to  that  which  shows 
the  intention  of  this  particular  individual,  and 
showing  at  the  same  time,  incidentally  perhaps, 
what  operated  upon  other  individuals  to  cause 
them  to  gather  upon  the  morning  of  the  11th  of 
September.  We  have  expressly  kept  our  evi- 
dence within  certain  limits.  The  United  States 
did  the  same  thing.  Your  Honors,  they  strictly 
avoided  the  use  of  every  name  (on  the  examina- 
tion of  Henry  H.  Kline,  with  which  we  were  pre- 
pared or  supposed  we  were  prepared,)  of  persons 
who  were  on  the  ground  and  identified  by  him  at 
all  times.  The  whole  evidence  was  shorn  down 
until  one  or  two  names  were  mentioned,  and 
when  we  came  to  cross-examine,  your  Honors 
said  we  would  not  be  allowed  to  contradict.  Now 
they  attempt  to  cut  their  case  in  half.  One-half 
they  present  to  the  Court  in-chief,  and  if  they 


160 


TREASON  CASES. 


have  not  had  enough,  then  they  present  the  other 
to  be  eaten  after  the  dinner  is  over.  I  say  that  this 
is  not  fair  towards  the  prisoner.  It  is  doing  him 
great  injustice.  It  is  attempting  to  make  the 
principal  part  of  the  case  come  last,  for  the  pur- 
pose of  operating  upon  the  jury,  because  it  will 
be  last  heard  by  them.  Upon  general  principles 
it  is  not  rebutting  evidence.  It  is  evidence  in- 
chief,  and  not  in  connection  with  any  thing  we 
have  offered,  and  which  we  have  confined  par- 
ticularly to  the  exculpation  of  the  individual 
who  is  tried  in  this  cause.  But  it  may  be 
a  part  of  our  case  that  there  was  no  treason 
at  all;  but  we  intend  to  rely  that  whatever  act 
was  committed  by  any  body,  Castner  Hanway 
was  entirely  innocent.  We  have  shown  our  case 
in  a  particular  way. 

Well  now,  then,  may  it  please  your  honors, 
there  is  a  technical  objection  to  this  question  too. 
The  United  States  are  bound  to  furnish,  three 
days  before  the  trial  of  a  cause,  the  names  of 
those  witnesses  whom  they  intend  to  examine. 
It  is  secured  to  us  by  the  Act  of  Congress,  defin- 
ing treason.  They  have  had  in  their  pockets  a 
list  of  their  witnesses,  and  they  have  never  fur- 
nished them  to  us.  They  have  kept  their  case 
in  view,  and  have  led  us  to  suppose  those  were 
the  only  witnesses  on  their  part.  They  then 
wanted  to  introduce  a  set  (all  of  whom  we  do  not 
know)  illegally,  to  bring  in  an  entirely  new  set 
of  facts,  for  the  express  purpose  of  convicting  a 
man  whom  we  think  we  have  shown  entirely  inno- 
cent. New  statements,  it  would  not  be  supposed, 
ought  not  to  be  introduced  to  prove  a  part  of  the 
case  of  the  prosecution  by  the  United  States,  and 
with  witnesses  of  whose  existence  we  never  have 
been  informed. 

Mr.  G.  L.  Ashmead.  The  earnestness  with 
which  the  counsel  upon  the  other  side  has  re- 
sisted this  offer,  proves  most  conclusively  that  it 
is  a  pinching  part  of  the  case.  I  rise,  may  it 
please  the  Court,  for  the  purpose  of  correcting  an 
error  into  which  the  counsel  has  fallen.  As  to  a 
matter  of  fact,  the  counsel  has  said  that  the 
gentlemen  who  were  engaged  on  the  part  of  the 
United  States  had  deliberately  held  back  this 
evidence,  when  in  justice  and  in  fairness  they 
ought  to  have  given  notice  of  it  to  the  defendants 
in  this  cause.  The  learned  counsel  has  entirely 
misapprehended  my  meaning,  when  I  said  that 
the  counsel  for  the  United  States  had  consulted 
together  with  regard  to  this  offer.  It  is  per- 
fectly evident,  may  it  please  the  Court,  that  this 
consultation,  or  this  knowledge  on  the  part  of  the 
counsel  for  the  United  States,  could  not  be  be- 
fore the  commencement  of  the  case,  because  if  it 
had  been  so,  as  a  matter  of  precaution  the  names 
of  the  witnesses,  at  all  events,  would  have  been 
inserted  in  the  notice  which  it  was  requisite  to 
serve  (three  days  before  the  trial)  upon  the  pri- 
soner at  the  bar.  And  I  will  state  further,  may 
it  please  the  Court,  that  the  very  existence  of  all 
the  witnesses  whom  we  intended  to  offer  upon 
this  point  were  not  known,  to  any  of  the  counsel 
on  the  part  of  the  United  States,  until  after  the 
defence  had  opened  the  testimony  on  their  part. 
Two  of  them,  may  it  please  the  Court,  are  wit- 
nesses who  have  been  brought  here  and  exam- 


ined on  the  part  of  the  defence,  whom  we  had  no 
means  of  ascertaining,  and  of  whose  existence  we 
did  not  know  until  after  they  had  been  produced 
by  the  defendant's  counsel,  in  this  very  cause. 
So  much,  therefore,  may  it  please  the  Court,  for 
that  part  of  the  counsel's  argument,  founded  up- 
on the  supposition  that  the  counsel  for  the  United 
States  had  purposely  withheld  this  testimony. 
But  suppose  the  counsel  for  the  United  States, 
had  known  of  this  testimony  beforehand,  and 
svippose  a  doubt  had  existed  as  to  the  admissi- 
bility or  competency  of  this  testimony,  (being 
offered)  your  honors  will  perceive,  as  counsel  for 
the  prosecution,  taking  a  merciful  view  as  re- 
gards the  prisoner  at  the  bar,  (if  they  had  doubt 
upon  the  introduction  of  such  testimony  upon 
examination-in-chief)  would  waive  it  as  a  matter 
of  justice  and  mercy  towards  the  prisoner  him- 
self, until  after  they  had  seen  whether  the  prison- 
er would  open  the  point  by  his  defence.  And  if 
they  had  done  it,  they  then  would  consider  we 
had  a  strict  right,  in  all  fairness,  to  offer  the  tes- 
timony in  order  to  rebut  it. 

This  very  mercy,  may  it  please  the  Court — 
this  very  mercy,  which  the  counsel  for  the  de- 
fence ought  to  praise,  is  made  a  charge  of  accu- 
sation against  the  counsel  for  the  United  States, 
and  I  apprehend  that  such  an  argument  will 
have  no  weight  in  the  determination  of  this 
question.  I  have  stated  in  my  previous  remarks 
the  grounds  upon  which  we  offer  this  testimony. 
I  shall  be  followed  by  the  learned  Attorney  Ge- 
neral of  Maryland,  Mr.  Brent,  who  will  fully 
explain  the  ground  upon  which  it  is  offered,  and 
give  the  reasons  why  the  testimony  should  be 
admitted  at  this  stage  of  the  proceedings. 

Mr.  Brent.  May  it  please  the  Court — I  can 
only  say,  sir,  for  myself,  and  upon  my  responsi- 
bility as  a  gentleman,  and  as  a  member  of  this  bar, 
that  I  was  not  conscious  that  this  testimony  was 
in  the  power  of  the  United  States,  when  the  evi- 
dence on  the  part  of  the  prosecution  closed; 
supposing  it  had  came  to  the  knowledge  of  some 
of  the  counsel  appearing  for  the  United  States, 
about  the  conclusion  of  the  evidence  in  chief, 
of  which  my  friend  and  colleague,  Mr.  Ash- 
mead, can  with  more  confidence  speak  ;  still  the 
Court  will  perceive  that  the  United  States  were 
not  in  a  position  to  use  that  evidence  in  chief. 
They  could  not  call  the  witnesses  to  prove  the 
facts,  because  their  names  were  not  upon  the 
list  furnished  to  the  defendant,  three  days 
before  the  trial,  according  to  the  act  of  Con- 
gress. Hence  the  discovery  of  the  testimony 
after  the  jury  was  empanelled,  did  not  en- 
able the  counsel  to  use  the  witness  in 
chief.  The  evidence,  therefore,  on  the  part 
of  the  prosecution  closed,  relying  upon  the 
prima  facie  case  which  was  made  out  in  the 
then  condition  of  things  —  the  manifest  evi- 
dence of  concert  through  that  whole  neigh- 
borhood, that  notice  has  been  sent  from  Phi- 
ladelphia to  that  neighborhood,  by  Samuel  Wil- 
liams, who  accompanied  some  of  the  officers 
employed  by  Mr.  Gorsuch — by  the  fact  that  cer- 
tain names,  certainly  the  names  of  Mr.  Gor- 
such's  slaves,  were  left  on  a  piece  of  paper,  in 
the  neigborhood  of  Christiana — by  the  evidence 


UNITED  STATES  V.  II  AX  WAY. 


161 


of  concert  in  the  blowing  of  horns  —  of 
there  being  responses,  and  an  almost  instanta- 
neous assemblage  of  armed  men,  some  on  foot 
and  some  on  horseback.  We  considered  that, 
sufficient  prima  facie  evidence  to  make  it  trea- 
son, and  to  connect  the  prisoner  with  it.  The 
counsel  for  the  defence  had  an  opportunity  of 


or  his  agent  came  to  reclaim  him;  and  in  the  in- 
stance which  we  shall  presently  offer  to  give  in 
evidence,  that  a  gentleman  of  the  highest  cha- 
racter in  the  State  of  Maryland,  coming  peace- 
ably, and  armed  with  the  process  of  the  Court — ■ 
that  when  he  went  in  broad  daylight  peaceably 
and  quietly  to  arrest  his  slave,  the  same  organiza- 


saying  it  was  not,  and  that  there  was  a  total  fail-  tion  was  brought  to  bear  in  resistance  to  him  as 


tire — but  they  go  on  to  make  a  defence  to  this, 
and  while  putting  on  their  defensive  armor,  are 
we  to  be  deprived  of  the  privilege  of  destroying 
that  very  defence  upon  which  they  rely — are  the 
hands  of  the  prosecution  to  be  tied  when  they 
attempt  to  strip  them  of  that  false  armor  with 
which  they  have  arrayed  themselves.  What  is 
that  defence  ?  Why,  confessing  the  fact  that 
there  was  organization — that  horns  did  sound  to 
summon  armed  bands  to  the  rescue — confessing 
that  fact,  they  have  referred  the  origin  of  that 
organization  to  lawful  and  legitimate  motives  ? 
What  is  it  ?  I  take  the  opening  statement  of 
the  counsel  for  the  defence,  where  the  purpose 
for  which  it  was  offered  is  given,  and  I  will 
show  that  they  offered  proof  for  that  pur- 
pose. I  read  the  opening  statement  of  the 
counsel,  (reads.)  The  counsel  then  went  on  to 
detail  the  two  cases,  one  only  of  which  they 
have  proved.  After  speaking  of  these  two  in- 
stances, the  counsel  says,  "  neither  of  these 
men  were  returned,"  (he  reads.)  Nowyour  ho- 
nors will  perceive  that  the  defence  confessing 
this  organization,  refers  it  entirely  to  the  exer- 
cise of  a  fair  and  natural  right — that  they  aimed 
themselves,  and  organized  purely  for  their  own 
protection.  They  have  gone  on,  therefore,  to 
explain  the  motive  of  this  organization,  and  to 
say  it  was  not  for  the  purpose  of  resisting  the 
law,  in  the  reclamation  of  slaves,  but  to  pre- 
vent illegal  violence  to  those  who  are  free. 
Going  back  to  January  they  gave  the  evidence 
of  the  transactions  at  Mr.  Chamberlain's,  where 
they  say — and  we  deny  it,  that  a  free  man  was 
carried  into  captivity.  The  counsel  for  the  de- 
fence not  choosing  to  depend  upon  the  absence 
of  testimony  of  preconcert,  other  than  implied 
by  the  signals,  and  the  matters  which  I  have 
mentioned,  have  undertaken  to  go  on  and  refer 
that  organization  to  a  certain  purpose.  Are  we 
not  to  rebut  that  allegation  ?  And  if  in  rebut- 
ting it,  we  introduce  evidence  which  might  have 
been  admissible  in  chief,  if  notice  had  been 
given,  is  it  to  be  excluded  ?  The  only  inquiry  in 
regard  to  this  rebutting  proof  is,  whether  it  is 
strictly  rebutting  ?  Does  it  destroy  the  allega- 
tion of  motive  on  which  the  defence  rely  ?  And 
we  only  offer  it  to  rebut  that,  and  we  are  enti- 
tled to  it,  as  rebutting  evidence  for  that  purpose, 
and  that  alone.  They  confess  the  organization, 
and  we  say  it  dated  far  interior  to  the  violence 
which  they  say  gave  rise  to  it,  and  that  it  origi- 
nated as  far  back  as  September,  1850,  six 
months  before  the  transaction  at  Mr.  Chamber- 
lain's house,  and  that  it  was  not  for  the  purpose 
of  protecting  free  colored  persons,  but  for  the 
purpose  of  rescuing  every  fugitive  slave  who 
might  be  seized  by  his  master,  or  the  agent  of 
his  master ;  and  for  the  purpose  of  preventing 
the  arrest  of  the  fugitive  slave,  when  his  master 


to  Edward  Gorsuch.  We  offer  it  to  destroy  the 
motive.  Are  there  no  principles  of  justice  and 
fairness,  for  we  hear  much  of  them  from  the 
other  side,  as  if  some  monstrous  law  had  been 
laid  down  against  this  party — as  if  some  strange 
course  had  been  pursued  towards  this  prisoner  ? 
Is  there  any  thing  of  unfairness  in  rebutting  a 
motive  ?  It  would  be  a  one-sided  trial,  truly — to 
allow  them  to  account  for  this  organization  by 
saying  it  was  for  a  legitimate  purpose,  and  not 
allow  the  United  States  to  rebut  it  —  to  de- 
stroy the  quo  animo  ? 

In  regard  to  the  technical  difficulty,  it  does 
not  apply  to  rebutting  evidence — it  applies  only 
to  evidence  in  chief.  If  the  counsel  on  the 
other  side  have  introduced  this  evidence,  and 
we  are  to  rebut  it,  this  does  not  apply. 

Judge  Grier.  There  is  great  difference  be- 
tween rebutting  evidence  and  evidence  by  way 
of  set-off,  and  this  is  an  exhibition  of  such  a 
case.  In  this  way  testimony  could  be  got  in, 
and  the  laws  made  to  protect  men  on  trial  for 
offences  that  have  such  terrible  consequences, 
would  be  evaded.  Every  thing  tending  to  show 
there  was  an  intention  to  make  public  resistance 
to  a  particular  law,  was  entirely  a  matter  of  evi- 
dence-in-chief, and  should  have  been  given  as 
such.  I  don*t  know  but  that  the  testimony  itself 
would  prove  directly  the  contrary  from  what  it 
is  offered  to  prove — only  tending  to  show  that 
there  was  a  band  of  runaway  negroes,  banded 
together  to  help  each  other  to  resist  their  mas- 
ters, who  came  to  reclaim  them;  it  would  not  be 
such  public  resistance  to  the  law  as  to  be  called 
treason.  It  might  be  a  sufficient  reason  why 
the  people  of  Lancaster  county  should  consider 
it  a  great  nuisance,  and  it  might  put  the  State 
of  Pennsylvania  to  the  necessity  of  refusing  en- 
trance to  all  colored  persons  hereafter.  Such 
may  be  the  evil  meted  to  them  in  consequence  of 
the  acts  they  are  put  up  to  by  imprudent  friends. 
Even  if  this  did  tend  to  prove  the  fact,  it  would 
be  evidence  entirely  in  chief,  not  at  all  rebutting 
any  thing. 

Judge  Kane.  I  concur  with  Judge  Grier  en- 
tirely. The  two  elements  of  the  crime  are  the 
act  and  the  preconcert.  It  is  for  the  prosecu- 
tion to  make  out  both,  and  by  omitting  evidence 
of  preconcert,  they  fail  in  their  original  case. 
The  evidence  which  is  now  offered  is  merely  to 
prove  that  preconcert.  It  was  an  indispensable 
element  of  the  original  case — it  seems  to  me  it 
cannot,  therefore,  be  introduced  as  rebutting 
evidence.  It  is  one  of  the  matters  going  to 
prove  the  charge  laid  in  the  indictment,  in  re- 
gard to  which  the  Act  of  Congress,  if  I  quote  it 
rightly,  is  express,  that  it  shall  only  be  proved 
by  those  witnesses  of  whom  three  days  notice 
has  been  given  to  the  other  side. 

J  cjdge  Grier.  We  may  draw  a  figure  from  the 


21 


162 


TREASON  CASES. 


game  of  whist — it  would  be  renigging  and  keep-  j 
ing  your  trump  back  to  the  last  trick. 

Mr.  J.  W.  Ashmead.  In  reference  to  Judge 
Kane's  remarks,  I  wanted  to  know  if  I  compre- 
hended his  view.  It  seems,  according  to  the 
present  view  of  his  Honor,  that  there  should  be 
evidence  of  preconcert,  we  believe  there  is 
abundance  of  it  here — yet,  according  to  the 
view  of  the  Court  the  other  day,  we  were  under 
the  impression  that  there  was  none  needed. 
We  presented  the  evidence  of  preconcert,  and 
your  Honors  overruled  it. 

Judge  Kane.  I  meant  by  no  means  to  be  so 
understood.  What  I  mean  now,  is  merely  this; 
that  the  evidence  is  now  cumulative,  and  not  re- 
butting. You  may  infer  preconcert  from  proved 
facts,  but  when  you  have  finished  on  both  sides, 
you  cannot  cumulate  your  evidence  for  the  pro- 
secution. 

Samuel  Wortkington  sworn. 

Mr.  G.  L.  Ashmead.  I  am  called  upon  to 
state  for  what  matters,  I  offer  this  witness. 
Your  honors  have  ruled  out  testimony,  showing 
there  were  armed  bands  of  negroes  there  in  Sep- 
tember 1850,  and  you  have  said  such  proof  was 
accumulative,  and  would  not  be  admissible  at 
this  stage  of  the  proceeding,  it  properly  belong- 
ing to  the  case  upon  the  examination-in-chief 
if  shown  at  that  time  to  the  counsel.  The  testi- 
mony that  has  just  been  rejected  I  have  stated, 
was  not  known  to  the  counsel  for  the  United 
States  till  after  the  defence  had  opened  their 
case,  and  examined  a  large  portion  of  their  wit- 
nesses. I  have  therefore  given  a  sufficient  reason 
why  it  was  not  offered  on  the  examination-in- 
chief.  I  now  proceed  to  offer  testimony  to  a 
point  which  is  perhaps,  to  be  distinguished  from 
the  testimony  which  has  just  been  rejected.  The 
defence  had  offered  testimony  to  show,  that  in 
January  last,  a  person  whom  they  allege  to  be 
free,  was  taken  by  a  party,  and  carried  into  the 
State  of  Maryland.  I  offer  to  meet  that  allega- 
tion, by  showing  that  that  could  not  have  been 
the  foundation  of  the  motive  which  actuated  the 
defendant  in  this  case,  in  the  transactions  of  the 
11th  September  last,  by  showing  that  at  a  later 
period,  to  wit,  in  April  last,  Mr.  Samuel  Worth- 
ington  the  witness,  with  a  party  from  Maryland, 
went  to  the  immediate  neighborhood  of  Chris- 
tiana ;  that  •'they  stopped  there,  at  the  house  of 
a  man  named*1  Haines,  to  take  a  slave  of  Mr. 
Worthington's  who  was  concealed  in  that  house, 
and  that  immediately 'thereupon,  the  same  signals 
were  given  at  that  house,  which  were  given  at 
Parker's  house.  The  first  testimony  we  offered 
was  as  to  the  general  state  of  the*  neighborhood 
near  Christiana,  showing  the  patrolling  the 
county  by  armed  bands  of  negroes  ;  this  testi- 
mony is  to  contradict  testimony  of  the  same  cha- 
racter on  the  other  side  ;  to  show  that  the  motive 
which  actuated  the  defendant  was  not,  as  they 
have  said,  of  a  lawful  and  legal  character,  but  of 
a  treasonable  and  criminal  kind.  It  is  for  this 
reason,  that  it  shows  preconcert  and  combination 
among  the  defendants,  who  have  been  indicted 
for  treason  of  a  different  character  entirely  from 
that  which  they  allege  in  their  behalf,  that  we 
think  this  testimony  is  admissible  now. 


]  Judge  Grier.  Is  it  to  prove  that  the  partiou- 
lar  negro  they  gave  evidence  about  was  a  slave, 
and  that  it  was  the  master  who  went  into  the 
house. 

Mr.  Read.    No,  sir. 

Judge  Grier.  Suppose  that  it  was  a  set  of 
kidnappers,  or  the  master,  for  if  the  master  went 
into  the  house  in  that  way  at  night,  he  might  be 
called  and  considered  a  kidnapper,  because  he 
did  not  distinguish  himself  from  one  in  his  con- 
duct, and  it  would  make  no  difference  whether 
he  was  a  kidnapper  or  not — and  this  would,  be 
raising  an  issue  that  would  be  irrelevant. 

Mr.  Stevens.  We  have  said  nothing  of  the 
character  and  condition  of  the  person  taken 
away  at  Chamberlain's  ;  we  have  shown  that  a 
colored  person  was  taken  away  without  authority. 
I  would  ask  my  friend  from  Maryland  if  they 
are  giving  evidence  to  rebut  a  speech  of  a  lawyer. 
Ho  they  expect  us  to  attempt  to  rebut  their 
speeches  ? 

Mr.  Brent.  I  never  advanced  any  proposi- 
tion so  absurd,  and  the  gentleman  is  indebted  to 
his  imagination  for  it.  I  read  the  opening  speech 
of  counsel  in  connection  with  the  evidence  to 
show  its  purpose. 

Mr.  Stevens.    Then  you  were  going  to  con- 
tradict the  opening. 
Mr.  Brent.    No,  sir. 

Mr.  Cooper.  I  confess  I  misunderstood  the 
whole  thing  from  the  beginning.  I  mean  the 
offers  that  have  been  made  since  the  examination 
of  the  witnesses  in  support  of  the  character  of 
Kline.  I  am  perfectly  sure  that  we  cannot  go 
back  now  to  offer  evidence  that  would  have  been 
evidence  in-chief ;  perhaps  I  would  not  go  to  that 
extent,  for  that  which  might  have  been  evidence- 
in-chief,  and  which  we  did  not  choose  to  exhibit 
in-chief,  might  become  rebuting  evidence  in  cases 
we  might  conceive.  I  suppose  the  whole  object 
here  was  for  the  purpose  of  contradicting  evi- 
dence on  the  other  side.  An  attempt  was  made 
to  prove  that  at  Chamberlain's  a  freeman  was 
carried  off, — 

Judge  Grier.  I  don't  think  they  have  shown 
what  his  condition  was,  but  simply  that  he  was 
a  negro.  In  using  that  phrase  I  do  not  mean  it 
as  offensive  to  any  one. 

Mr.  Cooper.  The  object  of  the  evidence  was 
to  contradict  this  ;  if  there  was  no  averment  nor 
attempt,  to  prove  he  was  a  freeman,  then  I  sup- 
pose this  is  not  evidence.  I  so  understood  it. 
I  know  it  was  so  opened,  and  I  supposed  that  it 
had  been  followed  up.  I  know  there  is  latitude 
given  to  the  counsel  who  opens,  and  that  what 
he  says,  cannot  be  followed  up  by  testimony  to 
contradict  it,  unless  the  testimony  given  corres- 
ponds with  the  statement  made.  This  is  the 
apprehension  I  had  of  it,  and  in  no  other  point 
of  view  could  this  be  evidence ;  and  if  it  is  con- 
ceded, on  their  side,  that  there  was  no  attempt 
made  to  prove  that  it  was  a  freeman  carried 
away — I  don't  see  that  there  is  an  issue  be- 
tween us. 

Mr.  Brent.  I  will  read  your  Honor's  part  of 
the  examination-in-chief  of  the  witness  by  whom 
these  facts  were  proved.  Page  200  of  the  notes, 
he  is  asked,  "  did  you  know,  '  &c.  (reads).  West 


UNITED  STATES  V.  HANWAY. 


1C3 


is  on  cross-examination,  (reads).    Tour  Honor 
will  see  that  this  evidence  was  offered  to  show 
that  this  man  -was  taken  away  and  never  return- 
ed— so  stated  in  the  opening  speech  of  counsel — 
and  as  I  remarked  before,  that  though  I  know  it 
is  not  competent  to  rebut  the  opening  speech  of 
counsel,  yet,  when  the  counsel  in  opening,  state 
the  purpose  for  which  they  are  going  to  give  evi- 
dence, and  that  a  manias  taken  into  slavery  and 
never  returned,  and  when  they  go  on  to  say  it 
was  kidnapping  in  the  legal  meaning  of  the 
word,  then  I  imagine,  notwithstanding  the  wit 
and  sarcasm  displayed  by  one  of  the  learned 
gentlemen  on  the  other  side — that  when  that  is 
stated  by  counsel,  and  the  witness  is  examined 
on  that  point,  I  think  it  is  the  same  as  if  an-  \ 
nounced  when  the  witness  is  offered.  That 
transaction  was  in  the  night  time — the  trans-  1 
action  which  we  propose  to  introduce  now,  was  ; 
in  the  daytime — for  the  purpose  of  showing  that 
the  same  organization  which  they  admit  on  their 
side,  did  not  apply  or  confine  itself  merely  to 
cases  of  kidnapping  in  the  night,  but  to  cases  in  : 
the  day  time,  and  where  the  officers  of  the  Unit-  j 
ed  States  went  there  to  execute  process. 

Judge  Grier.  I  think  it  comes  in  the  cate- 
gory of  that  which  has  been  already  rejected. 
I  am  willing  to  suppose  that  one-half  of  these 
people  are  runaway  negroes  banded  together, 
and  encouraged  by  white  people  not  much  better  ; 
but  how  is  any  one  to  judge  when  a  man  carries 
oft'  a  colored  man  at  night,  whether  it  is  the 
master,  or  his  agent,  or  an  absolute  kidnapper ;  | 
and  it  is  immaterial  whether  the  man  was  a 
slave  or  not.  You  will  see  the  view  with  which 
it  was  offered,  and  that  the  matters  you  offer  do 
not  go  directly  to  contradict  it. 

Mr.  G.  L.  Ashmead.     In  the  offer  we  have 
just  made,  we  offer  to  show  the  joining  together  : 
of  white  and  black  men  in  the  same  transaction. 

Judge  Grier.  It  is  the  same.  It  is  like  what 
I  referred  to  in  the  game  of  whist. 

Mr.  G.  L.  Ashmead.    Allow  me  to  say  that  the 
offer  was  made  with  entire  good  faith,  and  we  i 
believed  it  to  be  competent  testimony,  and  I  wish 
that  the  nature  of  our  offer  as  extending  to  whites 
and  blacks,  should  be  understood  by  the  Court. 

Judge  Grier.  I  dont  think  in  this  stage  of 
the  case  that  it  makes  any  difference. 

Mr.  G.  L.  Ashmead.  I  do  not  intend  to  read 
at  this  time,  the  indictments  which  I  now  wish  to 
put  in  evidence,  but  I  wish  it  to  be  understood 
that  they  are  in  evidence ;  they  are  the  indict-  , 
ments  of  the  United  States  vs.  J.  Williams  and 
thirty-nine  others,  including  Mr.  Hanway,  and 
the  indictment  against  Mr.  Hanway,  Mr.  Lewis, 
and  Mr.  Scarlett,  the  three  white  persons  together, 
for  the  same  offence.  We  wish  them  in  evidence 
to  affect  the  credibility  of  Elijah  Lewis. 

Mr.  Read.    There  is  a  difficulty  from  their  j 
supposing  that  these  records  are  in  this  Court,  j 
They  are  not  here,  but  they  are  certified  to  the 
next  term  ;  and  at  all  events,  I  cannot  see  what 
another  indictment  has  to  do  with  this  indictment. 

Judge  Grier.    So  far  as  it  affects  the  credi- 
bility of  the  witness,  I  think  it  is  known  to  the  ' 
jury  from  the  admissions  on  both  sides,  that  Mr. 
Lewis  is  indicted  for  the  same  offence.  I 


Mr.  Read.  Elijah  Lewis  has  been  indicted  for 
the  same  offence;  we  dont  deny  it. 

Mr.  G.  L.  Ashmead.  We  merely  wished  it  in, 
in  a  legal  way. 

Gist  Cockey  sworn. 

Mr.  Read.    What  is  this  witness  offered  for  ? 

Mr.  G.  L.  Ashmead.  The  witness  named  Jacob 
Whitson,  was  introduced  by  the  defence,  who  said 
he  had  a  conversation  with  Mr.  Kline,  in  which 
Mr.  Kline  said  that  a  reward  of  ten  thousand  dol- 
lars had  been  offered  for  the  apprehension  of 
Parker,  and  further  stated  that  Kline  told  him 
that  he,  Kline,  had  seen  Parker  shoot  old  Mr. 
Gorsuch.  I  offer  this  witness,  who  was  present 
at  that  conversation,  for  the  purpose  of  proving 
that  Kline  had  no  conversation  at  all  with  Jacob 
Whitson,  and  that  this  witness  was  himself  the 
person  who  had  the  conversation  with  Whitson, 
which  conversation  differed  entirely  in  sen.Fe  and 
meaning  from  the  conversation  as  detailed  by 
Whitson. 

Mr.  Stevens.  If  it  is  to  contradict  the  witness 
we  have  no  objection. 

Mr.  Geo.  L.  Ashmead.  State  whether  that 
(Jacob  Whitson)  is  the  gentleman  with  whom 
you  were  in  conversation  with  Mr.  Kline? 

Answer.  Yes. 

Question.  Where  did  the  conversation  take 
place  ? 

Answer.  At  his  fathers  house  as  I  under- 
stood. Kline  was  present.  It  was  on  Sunday 
afternoon. 

Question.    During  that  interview  had  Kline 
any  conversation  with  Jacob  Whitson  ? 
Answer.  I  think  not. 

Question.  If  he  had  had,  would  you  have 
known  it  ? 

Answer.  I  would  have  heard  him. 

Question.  Had  you  a  conversation  with  him 
yourself? 

Answer.  Yes. 

Question,  State  whether  anything  was  said  as 
to  a  reward  of  ten  thousand  dollars? 

Answer.  Not  by  Kline.  I  went  to  the  house 
with  Kline  and  three  or  four  other  gentlemen,  I 
asked  for  Parker — this  young  man,  or  a  young 
lady  said  he  was  not  there  ;  1  said  I  understood 
he  was  and  wanted  to  search  the  house.  They 
said  we  could  do  so,  and  after  I  found  they  were 
so  willing  for  us  to  search  for  him,  I  said  there 
was  no  use,  and  we  came  out  and  some  one  said, 
go  to  the  barn  and  search,  and  I  got  on  the  fence 
and  was  talking,  and  some  one  made  the  remark 
that  there  was  a  reward  offered  ;  I  said  there 
was,  and  I  said  that  if  I  had  been  in  the  place  of 
young  Mr.  Gorsuch,  and  my  father  was  murdered 
I  would  give  ten  thousand  dollars  —  he  said, 
he  has  gone  away,  and  I  said  I  could  not  help 
that,  I  would  find  him  in  Canada  or  anywheres 
else. 

Question.  Was  a  remark  made  to  you  about 
Parker,  by  a  young  lady  in  the  room  ? 

Answer.  The  young  lady  might  have  said 
something,  she  talked  considerable  :  I  don't  re- 
member what  it  was. 

Question.  Was  any  thing  said  with  regard  to 
your  knowing  Parker  ? 

Answer.    Yes,  they  asked  if  I  knew  him,  and 


164 


TREASON  CASES. 


I  said  yes,  if  it  was  a  man  they  called  Nelson, 
■who  was  Mr.  Gorsuch's  seiwant. 

Question.  Have  you  stated  all  you  recollect 
of  that  conversation  ? 

Answer.  I  think  I  have,  I  don't  recollect 
anything  else. 

Question.  Are  you  quite  positive  that  Kline 
fiad  no  conversation  with  him  ? 

Answer.  I  am  confident  he  had  no  conversa- 
tion but  what  I  heard. 

Question.  Did  you  hear  any  one  else  say 
any  thing  about  the  reward  of  ten  thousand  dol- 
lars, or  mention  Parker's  name,  but  yourself? 

Answer.  No. 

Question.  Did  you  hear  any  thing  as  to  shoot- 
ing old  Mr.  Gorsuch  ? 

Answer.  No,  sir,  only  some  of  them  asked 
if  Parker  was  the  man  that  shot  Mr.  Gorsuch  ;  I 
can't  recollect  who  asked  it :  it  was  not  Kline. 
I  don't  know  what  the  reply  was. 

Question.  Were  you  present  at  Christiana  at 
the  time  Mr.  Kline  was  put  out  of  the  room  by 
the  officers? 

Answer.    Yes,  sir. 

Mr.  Stevens.    We  object  to  that. 

Mr.  G.  L.  Ashmead.  One  or  two  of  the  wit- 
nesses on  the  part  of  the  defence,  testified  that 
at  Christiana,  Mr.  Kline  behaved  in  a  violent 
manner,  and  they  put  him  out  of  the  room. 

Mr.  Read.  It  was  on  cross-examination,  to 
show  if  the  witness  had  any  feeling  or  not. 

Mr.  Stevens.  The  witness  Murphy  proved 
that  Kline's  character  was  bad,  and  they  went 
on  to  ask  him  if  he  was  at  Christiana  when  the 
quarrel  took  place  in  the  room  ;  and  he  was 
asked  if  he  didn't  see  Jacob  Albright,  or  some- 
body have  a  quarrel  with  him,  and  he  said,  he 
saw  Jacob  Albright  carry  him  out  of  the  room  to 
prevent  a  fight. 

Judge  Grier.  If  you  agree  to  that  statement, 
it  comes  under  the  category  that  we  refused  on 
their  side.  When  they  began  to  examine  wit- 
nesses as  to  character,  I  paid  no  attention  to  it, 
and  didn't  hear  it ;  if  he  was  called  merely  to  state 
the  character  of  one  of  your  witnesses,  and  you 
cross-examined  for  the  purpose  of  showing  his 
feeling  of  enmity  towards  him,  you  cannot  bring 
other  witnesses  to  contradict  that. 

Mr.  Ashmead.  I  understand  that  Jacob  Al- 
bright was  here  to  testify  as  to  character. 

Mr.  Read.  He  was  examined  to  prove  ser- 
vice of  subpsena. 

Mr.  Ludlow.  Mr.  Hopkins  was  the  man  we 
refer  to.  He  stated,  in  answer  to  a  question 
made  by  me,  that  he  had  no  difficulty  with  Kline 
at  Christiana,  but  he  saw  Kline  oppose  Albright. 

Mr.  Brent.  This  Mr.  Hopkins  was  put  upon 
the  stand  to  impeach  Mr.  Kline's  character,  and 
to  show  a  feeling  against  Kline.  He  was  asked 
if  he  was  not  present  as  one  of  the  posse  to  make 
the  arrests,  and  he  said,  Yes  ;  and  he  was  asked 
if  Kline  was  not  turned  out  of  the  room,  and 
his  coat  torn  off,  and  he  said  he  saw  Kline  put 
out  of  the  room  by  Albright,  to  prevent  a  fight ; 
and  he  was  asked,  if  he  didn't  participate  with 
Albright  in  putting  Kline  out  of  the  room ; 
he  denied  it,  and  we  want  to  show  that  he  did 
•assist. 


Mr.  Cuyler.  Those  questions  were  all  put 
on  your  side. 

Mr.  Brent.  I  admit  it.  It  matters  not  on 
which  side  they  were  put ;  we  put  them  to  show 
he  had  a  difference  with  Kline,  and  he  denied 
having  that  difference.  If  a  witness  is  put  upon 
the  stand  to  testify  as  to  character,  you  can  ask 
on  cross-examination,  whether  he  had  a  differ- 
ence, and  if  he  says  he  had  not,  are  you  bound 
by  it  ?  May  I  not  bring  up  witnesses  to  say  he 
had,  and  that  he  has  stated  what  was  not  true  ? 

Judge  Grier.  I  nave  often  heard  testimony 
admitted  in  this  way,  and  it  made  a  number  of 
issues,  till  you  forgot  the  case  altogether,  and 
was  useless  on  both  sides. 

Mr.  Read.  Your  honors  ruled  out  what  was 
to  us  very  important,  on  the  ground  that  it  in- 
volved collateral  issues.  We  think  the  other 
gentlemen  ought  to  be  treated  in  the  same  way. 

Judge  Grier.  The  difference  here  is  that  they 
say  they  did  not  offer  him  to  contradict  the  wit- 
ness, but  to  prove  a  fact  that  is  per  se  evidence, 
to  show  that  he  had  a  difficulty  with  Kline. 

Mr.  Read.  He  was  asked  whether  Jacob 
Albright — not  the  witness  himself — didn't  for- 
cibly put  Kline  out  of  the  room,  and  tear  his 
coat. 

Mr.  Brent.  And  whether  he  didn't  participate 
in  it. 

Mr.  Read.  I  can't  see  the  difference  ;  the 
answer  of  the  witness  was  that  Jacob  Albright 
interfered,  and  tore  his  coat,  and  that  he  took 
Kline  out  of  the  room  to  prevent  his  opposing 
Lieut.  Ellis  of  the  Marshal's  police.  If  we  are  to 
go  on  in  this  way,  we  will  have  a  hundred  im- 
material issues. 

Judge  Kane.  There  seems  to  be  a  discrep- 
ancy in  the  recollection  of  counsel  as  to  what 
has  been  testified.  If  the  witness  to  whom  refer- 
ence is  made,  did  testify  that  he  had  no  quarrel 
with  Mr.  Kline — that  he  had  not  been  compelled 
to  turn  him  out  of  the  room  because  of  Mr.  Kline's 
misconduct — then  it  seems  so  me  it  is  open  on  the 
other  side  to  call  a  witness  to  contradict  him  and 
so  prove  that  the  first  witness  was  prejudiced, 
and  had  a  bias  on  his  mind.  But  if  on  the  other 
hand,  what  the  witness  swore  to,  was  merely  a 
dispute  between  another  set  of  parties — Albright 
and  Kline — as  that  would  show  no  prejudice  on 
his  mind  even  if  proved,  the  evidence  proposed 
to  be  offered  would  be  irrelevant. 

Mr.  Ludlow.  The  reason  I  fix  the  fact  upon 
my  memory  is,  that  I  went  to  Mr.  Bacon  and  told 
him  to  recollect  the  witness. 

Judge  Kane.  Put  the  question,  Mr.  Ash- 
mead. 

Mr.  G.  L.  Ashmead.  Were  you  present  at 
Christiana,  at  the  time  a  difficulty  took  place 
between  Kline,  Albright,  and  others  ? 

Answer.  I  don't  know  whether  between  Al- 
bright and  others.  I  was  there  at  the  time  of 
the  difficulty  between  some  of  the  police  officers 
and  Kline. 

Question.  Did  you  see  the  witness  examined 
here  yesterday,  named  Hopkins  ? 

Answer.    No.    I  was  not  in  the  room. 

Question.  State  what  took  place  in  that 
room. 


UNITED  STATES  V.  HAN  WAT, 


165 


Mr.  Read.    Connect  Mr.  Hopkins  with  it. 
Witness  turned  over  for  cross-examination. 
Mr.  Stevens.    Have  you  any  violent  hostility 
to  Mr.  Hanway  ? 
Answer.    No,  sir. 

Question.  Had  you  expressed  yourself  what 
would  be  done  with  him,  if  you  could  catch  him 
in  the  State  of  Maryland  ? 

Answer.    I  don't  know  that  I  have,  sir. 

Question.  That  you  would  tar  and  feather 
him  ? 

Answer.    No,  sir. 

Question.    You  are  quite  sure  of  that  ? 
Answer.    I  don't  think  I  have  ever  stated  so, 
sir. 

Question.  Did  you  ever  say  any  thing  about 
the  members  of  his  family,  any  violent  matter? 

Answer.  No,  sir.  I  don't  know  any  thing 
about  his  family. 

Question.    Nor  Mr  Lewis  ? 

Answer.  No,  sir.  I  don't  know  either  of 
their  families. 

Question.    And  said  nothing  against  them? 

Answer.    No,  sir.    Not  to  my  recollection. 

Mr.  Lewis.  That  conversation  you  spoke  of, 
was  on  the  fence  ? 

Answer.  Yes.  I  was  part  of  the  time  on  the 
fence,  and  part  of  the  time  in  the  house. 

Question.  You  have  given  the  conversation 
on  the  fence  ? 

Answer.    Part  of  it  was. 

Question.  What  part  of  it  was  on  the  fence, 
that  part  about  the  reward  ? 

Answer.    Yes,  sir. 

Question.    What  part  was  in  the  house  ? 

Answer.  I  went  there  and  asked  for  Parker, 
and  they  said  he  was  not  there,  and  I  said  let  us 
search,  and  they  said  we  could  do  so,  and  after- 
wards I  said  it  was  not  worth  while,  as  they  were 
so  willing.  That  was  all,  I  think,  in  the  house. 
This  fence  was  right  across  the  lane  from  the 
house.    I  was  sitting  on  the  fence. 

Mr.  Stevens.  During  all  the  time  Kline  was 
there,  he  never  opened  his  mouth  ? 

Answer.  I  didn't  say  so.  I  said  I  didn't  hear 
Kline  have  any  conversation  with  this  gentle- 
man at  the  time. 

Question.    With  any  gentleman  ? 

Answer.  He  may  have  answered  some  ques- 
tions that  I  asked  him. 

Question.  Did  he  answer  any  that  anybody 
asked  him  there  ? 

Answer.    Not  to  my  recollection. 

Mr.  Brent.  You  were  near  enough  to  Kline 
to  hear  all  he  said  ? 

Answer.  Yes. 

Question.  Have  you  recollection  of  his  having 
said  on  that  occasion  that  he  saw  Parker  kill 
Mr.  Gorsuch  ? 

Answer.    I  did  not. 

Question.  If  he  had  said  it,  could  you  have 
heard  him  ? 

Answer.  Yes,  sir. 
John  Bacon,  sworn. 

Mr.  G.  L.  Ashmead.    Were  you  a  neighbor  of 
Edward  Gorsuch  in  Baltimore  county,  Maryland? 
Answer.  Yes. 

Question.    Did  you  at  any  time  go  up  to 


Christiana  after  the  occurrence  of  the  11th  of 
September  ? 
Answer.  Yes. 

Question.  Were  you  at  Christiana  at  the  time 
that  Kline  was  put  out  of  the  room  by  the  offi- 
cers ? 

Answer.    I  was,  sir. 

Question.  Do  you  recollect  seeing  here  a  man 
examined  on  the  stand  named  Hopkins  ? 
Answer.    I  do. 

Question.  Was  he  present  on  that  occasion? 
Answer.    He  was. 

Question.    Did  he  assist  the  others  in  putting 
Kline  out  of  the  room  ? 
Answer.    I  think  he  did. 
Question.    You  saw  him  here  yesterday . 
Answer.  Yes. 

Question.  The  man  who  said  yesterday  that 
Kline  was  put  out  for  the  purpose  of  preventing 
a  fight? 

Answer.    Yes,  sir. 

Question.  Was  he  put  out  for  that  purpose  ? 

Answer.  Kline  came  into  the  room  with  others 
and  caught  one  of  the  criminals  on  the  shoulder, 
and  told  him  he  wanted  to  speak  to  him;  and 
Lieutenant  Ellis  forbid  him  to  speak  to  him  or 
move  him ;  and  Kline  said,  he  had  been  there  all 
the  time  and  assisted  in  arresting  them,  and  was 
there  before  Ellis  and  his  posse  came  up,  and  he 
had  as  much  right  to  speak  to  him  as  anybody. 
Lieutenant  Ellis  and  others  said  he  had  not  and 
should  not,  and  forbid  him  doing  so.  Kline  went  on 
to  sneer  at  him,  tantalising  him,  that  he  hadn't  any 
right  there,  that  he  was  a  small  thing  at  any  rate. 

Judge  Grier.  I  would  suggest  to  you,  that 
you  have  examined  some  hundred  witnesses  as 
to  character,  and  if  we  enter  into  this,  it  will  be 
raising  collateral  issues.  In  a  bushel  of  wheat 
you  don't  wipe  every  grain.  I  remember  a  case 
tried  in  that  way  in  Dauphin  county,  and  they 
took  six  or  eight  weeks.  Every  man  in  Dauphin 
township  was  examined  as  to  character,  and  they 
run  out  so  many  new  issues,  that  they  forgot  what 
the  original  issue  was,  that  they  began  to  try. 

Mr.  Read.  The  Police  force  sent  up  there 
was  under  the  direction  of  Mr.  Ellis,  and  he  had 
the  control  of  the  prisoners. 

Mr.  G.  L.  Ashmead.  If  it  is  such  a  straw,  I 
am  surprised  that  our  friends  on  the  other  side 
take  so  much  trouble  to  get  it  out  of  the  way. 

Mr.  Stevens.  I  want  the  witness  to  go  on, 
he  was  telling  what  a  small  thing  Kline  was. 

Judge  Grier.  I  thought  the  witness  had 
finished.  I  suppose  you  have  closed  the  testi- 
mony on  both  sides. 

Mr.  Brent.  I  am  sure  your  Honor  does  not 
wish  to  curtail  the  inquiry,  but  you  have  not 
heard  the  material  part  of  the  transaction.  They 
call  witnesses  to  assail  the  character  of  Mr.  Kline, 
and  we  wish  to  show  that  some  of  these  very 
witnesses  have  participated  in  violent  proceedings 
against  him,  anJ  it  is  material  before  the  jury. 
We  want  to  show  what  they  did  to  Mr.  Kline, 
who,  for  doing  nothing  but  claiming  the  privilege 
of  talking  to  a  prisoner,  who  I  think  was  not  un- 
der the  jurisdiction  of  Mr.  Ellis,  was  forcibly 
ejected  from  the  room,  and  his  coat  torn  from  his 
back. 


166 


TREASON  CASES. 


Judge  Grier.  We  decided  the  testimony 
should  be  admitted,  and  I  supposed  you  were 
through,  and  the  remark  was  to  intimate  that 
there  was  no  use  of  raising  issues  on  a  matter 
that  would  not  be  thought  of  afterwards,  it  takes 
up  time  and  does  not  a  particle  of  good. 
•  Harvey  Scott  sworn,  (colored.) 

Mr.  Read.  What  is  proposed  to  be  proved  by 
this  witness  ? 

Mr.  G.  L.  Ashmead.  We  otter  to  prove  that 
the  testimony  given  on  the  part  of  the  defence, 
by  Carr  and  others,  the  alibi,  is  not  correct,  that 
this  witness  was  on  the  ground,  and  I  wish  him 
to  explain  how  he  got  out  of  the  room  and  pro- 
ceeded to  the  scene  of  action. 

Mr.  Read.  Our  objection  is  this.  I  do  not 
want  to  bind  anybody  to  the  opening  speech — 
but  it  was  said  he  was  an  actor  in,  and  saw  the 
transaction  of  the  morning  of  the  11th  of  Sep- 
tember; if  he  is  to  prove  any  thing  that  took 
place  there,  it  is  evidence  in  chief,  and  it  is 
what  the  United  States  should  have  done  in  the 
first  place. 

Mr.  Ashmead.  We  do  not  offer  him  for  that 
— but  to  prove  he  was  there. 

Judge  Grier.  If  you  bring  a  witness  to  con- 
tradict Kline  as  to  Harvey  Scott's  being  there, 
they  have  a  right  to  show  that  he  was  there. 

Mr.  Geo.  L.  Ashmead.  Were  you  at  the  battle 
on  the  morning  of  the  11th  of  Sept.  last? 

Answer.  I  gave  my  evidence  that  I  was  there 
once.  I  w3S  frightened  at  the  time  I  was  taken 
up,  and  1  said  I  was  there,  but  I  was  not. 

Question.  Were  you  there  an  the  morning  of 
the  11th  of  Sept.  last? 

Answer.  I  was  proved  to  be  there,  but  I  was 
not  there. 

Question.  On  the  morning  of  the  11th  of 
Sept.  last? 

Answer.  No,  sir — Kline  swore  I  was  there, 
and  at  the  time  I  was  taken  up,  I  told  the  man  I 
was  not  there,  and  they  took  me  to  Christiana, 
and  I  was  frightened,  and  I  didn't  know  what  to 
say,  and  I  said  what  they  told  me. 

Mr.  Geo.  L.  Ashmead.  I  had  a  conversation 
with  this  witness  three  or  four  days  ago,  and  he 
Baid  he  was  there. 

Judge  Grier.  Yes,  others  have  had  a  con- 
versation later  than  you. 

Mr.  Geo.  L.  Ashmead.  Do  you  understand  my 
question  when  I  ask  you  whether,  on  the  morn- 
ing of  the  11th  of  Sept.  last,  at  Parker's  house, 
you  were  present  and  saw  what  occurred  ? 

Answer.  That  was  what  I  said. 

Question.  Did  you  state  that  to  me  two  or 
three  days  ago  ? 

Judge  Grier.  Do  you  say  so  now  ? 

Answer.  No,  sir. 

Question..   Have  you  had  conversation  with 
any  one,  since  you  conversed  with  me  ? 
Answer.    No,  sir. 

Mr.  John  W.  Ashmead.  In  a  case  of  this 
character,  I  think  I  have  a  public  duty  to  per- 
form. I  was  present  at  his  examination  before 
the  Commissioner  of  the  United  States,  and  he 
swore  he  was  there,  and  detailed  all  the  transac- 
tions that  occurred.  And  he  was  examined  on 
another  occasion  here,  in  the  case  of  Williams, 


and  he  swore  positively  he  was  there  ;  and  hav- 
ing deliberately  testified  to  that  matter  on  two 
occasions,  I  feel  bound  in  justice  to  the  Govern- 
ment and  to  the  public,  to  ask  that  he  may  be 
now  committed  to  take  his  trial  for  perjury  ? 

Mr.  Read.  I  do  not  wish  to  interfere  with 
justice,  but  here  is  a  poor  negro  with  a  weak 
mind  who  was  entrapped  into  saying  what  was 
untrue,  and  I  think  it  is  taking  advantage  of 
him  under  the  circumstances ;  I  think  this  should 
not  be  done  now.  I  think  it  could  be  proved 
that  he  is  not  a  man  who  is  hardly  responsible 
for  his  acts. 

Mr.  J.  •  W.  Ashmead.  I  am  willing  that  he 
should  be  kept  in  custody  to-day. 

Judge  Grier.  Poor  devil,  it  is  not  worth 
while  for  the  United  States  to  do  it.  Let  him  go, 
and  if  you  owe  him  any  thing,  pay  him,  that  he 
may  not  be  tempted  to  steal. 

Mr.  Stevens.  The  truth  is,  that  he  is  not 
right  in  his  mind. 

Mr.  J.  W.  Ashmead.  With  that  explanation 
I  am  perfectly  willing  he  should  depart. 

Court  adjourned  till  Friday,  December  5th, 
1851,  at  10  A.  M. 


Philadelphia,  Friday,  December  5th,  1851. 

THE  COURT  OPENED  AT  TEN  A.  M. 

PRESENT,  JUDGES  GRIER  AND  KANE. 
Jurors  all  present. 

Judge  Grier.  Have  the  United  States  any 
more  testimony  ?  I  would  wish  to  remark,  I  have 
no  doubt  that  every  one  has  a  desire  to  hear  this 
cause,  but  we  must  insist,  that  no  one  shall  show 
his  approbation  by  attempting  to  clap  or  laugh. 
I  felt  much  mortified  that  any  one  should  be 
found  exhibiting  such  conduct  as  was  evinced 
last  night.  It  was  disgraceful  to  human  nature. 
A  poor  wretched  negro  has  been  committing  per- 
jury, (he  has  sworn  twice  one  way  and  once  an- 
other,) and  I  say  it  is  disgraceful  that  any  person 
should  be  found  so  base  in  their  opinions  as  to 
clap  their  hands  in  exultation  ;  it  is  a  taste  which 
should  not  be  encouraged,  and  I  should  find  little 
difficulty  in  punishing  it  very  severely.  The 
testimony  of  that  person  did  not  affect  this  cause 
a  straw,  and  it  was  on  that  account  I  mentioned 
it.  If  any  person  in  the  crowd  does  such  a  thing 
and  we  cannot  distinguish  him,  we  shall  have  to 
put  them  nil  out. 

Mr.  Stevens.  I  wish  to  say  this.  Your  honor 
said  he  had  been  twice  sworn  the  other  way,  and 
then  came  into  Court  to  commit  perjury. 

Judge  Grier.  I  think  it  is  pretty  plain,  and 
I  do  not  offer  any  explanation  to  you.  I  care- 
fully intended  it  to  have  no  bearing  upon  this 
case. 

Mr.  Stevens.  The  remarks  might  be  under- 
stood as  reflecting  upon  the  defence. 

Judge  Grier.    It  was  not. 

Mr.  Ashmead.  He  swore  three  times,  once 
at  Christiana,  once  at  Lancaster,  and  once  in 


UNITED  STATES  V.  II  AN  WAT. 


167 


Williams'  case. — May  it  please  the  Court,  there 
is  a  witness  I  shall  have  occasion  to  use  on  the 
part  o;  the  United  States,  whose  testimony  can- 
not b'* 7oceived  in  this  case  now,  under  the  rul- 
ing of  this  Court;  it  being  cumulative  in  its 
character.  As  he  is  of  very  great  importance,  I 
ask  we  may  have  an  order  to  commit  him,  so 
that  he  may  be  detained  as  a  witness.  His  name 
is  Charles  Milford ;  he  is  a  colored  man. 

Judge  Kane.  Your  order  is  in  default  of  bail, 
or  absolutely  ? 

Mr.  Ashmead.  I  would  rather  detain  any 
how. 

Mr.  D.  P.  Brown.  I  did  not  understand  the  ap- 
plication exactly  of  Mr.  Ashmead,  but  sufficient 
of  it  to  understand  that  it  was  in  relation  to  some 
case  not  on  trial ;  and  as  I  am  counsel  for  almost 
all  the  other  prisoners,  I  think  it  should  be  stated 
in  a  manner  so  that  those  might  hear  it  who  feel 
interested  in  it. 

Mr.  Ashmead.  I  have  stated  that  there  is  a 
witness  by  the  name  of  Charles  Milford,  for  whom 
I  ask  the  Court  for  an  order  that  he  may  be 
committed  as  a  witness.  It  is  a  right  I  have  by 
Act  of  Congress,  and  it  has  never  been  ques- 
tioned, therefore  I  did  not  make  it  public. 

Mr.  Brown.  So  far  as  regards  ourselves  I 
have  no  interest  in  it  certainly,  but  I  want  to 
know  whether  he  is  one  of  those  whose  names 
have  been  given  us  on  representing  the  defence  ? 

Mr.  Ashmead.  I  will  state  it  is  not  one  of 
the  names,  and  for  the  information  of  the  gentle- 
man, I  will  further  state  that  there  will  be  a  new 
list  of  names  made  out  and  served  to  the  counsel. 
It  was  not  known  to  us  until  this  morning. 

Mr.  Brown.  Which  service  will  be  accepted, 
subject  to  protest. 

Alderman  Reigant  is  called. 

Mr.  G.  L.  Ashmead.  If  your  Honors  please, 
where  a  party  has  been  deceived  by  a  witness, 
it  is  a  right  he  has  to  show  that  he  has  been 
thus  deceived.  On  the  part  of  the  United  States, 
we  have  stated  to  the  Court  that  this  witness  has 
deceived  us  by  the  character  of  his  testimony.  I 
wish  to  show,  as  I  think  we  have  a  right  to 
show,  that  on  the  examination  of  this  witness  al 
Christiana,  upon  his  examination  at  Lancaster, 
and  upon  his  examination  in  this  city,  upon  his 
oath,  he  has  told  the  story  that  he  was  on  the 
battle  ground  at  Christiana.  He  has  told  it  in 
a  straight-forward  way,  and  he  has  never  con- 
tradicted it  until  he  was  brought  upon  the  stand 
yesterday,  and  further  that  no  one  has  conversed 
with  him  since  I  saw  him  about  three  days 
ago.  That  yesterday  in  the  Marshal's  office, 
he  was  conversed  with,  by  several  negroes,  who 
were  required  to  be  sent  away  from  him.  I  wish 
to  show  that  but  three  days  since,  when  I  saw 
him  at  the  prison,  in  the  conversation  I  had  with 
him,  lie  told  me  precisely  the  same  story,  that 
he  had  told  me  upon  the  three  previous  exami- 
nations. We  think  that  we  have  a  right  to  show 
these  things,  and  that  we  ought  to  show  in  justi- 
fication for  having  offered  him  as  a  witness  in 
this  cause. 

Mr.  Read.  I  think,  may  it  please  your 
honors,  that  this  is  not  the  regular  mode  of 
offering  rebutting  testimony.    This  witness,  if  a 


witness  for  the  prosecution,  was  a  witness-in- 
chief.  I  am  not  stating  he  would  not  be  a  wit- 
ness in  the  purpose  for  which  he  was  presented, 
but  that  he  was  a  witness-in-chief,  if  he  was  on 
the  ground  and  saw  the  circumstances  which  took 
place. 

If  the  United  States  had  done  what  they  are 
always  bound  to  do,  if  they  believed  and  trusted 
their  witness,  to  put  him  on  the  stand,  even  if 
they  did  not  choose  to  examine  him,  he  is  their 
witness  and  produced  by  them.  That  is  the  usual 
course  of  proceeding  as  a  matter  of  justice  and 
propriety  towards  the  prisoner.  If  they  will  not 
put  him  on  the  stand,  they  begin  by  discrediting 
him  themselves,  and  when  they  offer  him  as  to  a 
single  fact,  they  are  to  take  their  chance  whether 
he  is  or  is  not  to  be  believed.  This  witness  was 
produced  for  a  single  purpose,  and  it  was  to 
prove  he  was  on  the  ground,  and  that  Air.  Kline  had 
sworn  correctly.  Now,  I  understand,  that  not 
having  chosen  to  produce  him  in-chief,  but  hav- 
ing been  overwhelmed  by  the  testimony  on  the 
part  of  the  defence,  that  he  never  was  there,  the 
object  is  to  introduce  what  he  has  sworn  on 
former  occasions  to  go  in  evidence  before  this 
court,  and  what  he  has  never  said  when  he  spoke 
the  truth.  Now,  are  we  to  have  at  this  stage  of 
the  cause,  all  the  irrelevant  matters  brought  be- 
fore the  jury  and  the  court  for  the  purpose  of 
affecting  the  life  of  the  prisoner  ?  May  it  please 
your  Honors,  I  think  it  is  not  the  course  of  pro- 
cedure a  dignified  body  like  the  United  States 
should  pursue  toward  a  poor  inoffensive  miller 
of  Lancaster  county.  They  had  the  power  and 
right  to  go  over  the  whole  of  Lancaster  county, 
and  they  have  brought  individuals  from  all  por- 
tions of  the  country  ;  they  have  been  satisfied 
with  the  testimony,  and  they  do  not  dare  to  put 
this  man  upon  the  stand,  and  endure  a  cross-ex- 
amination ;  I  say  that  under  these  circumstances 
it  is  not  for  them  to  prove  what  he  has  said  upon 
former  occasions.  It  is  not  for  Mr.  Ashmead  to 
be  his  father  confessor,  and  come  here  to  prove 
what  he  said  in  the  solitary  prison,  or  in  the 
solitary  office.  This  is  not  the  mode,  though 
there  can  be  no  doubt  he  has  sworn  first  to  one 
thing  and  then  to  another.  We  do  not  impute  to 
the  United  States,  what  we  shall  impute  to  an- 
other quarter.  We  know  the  gentlemen  of  tu  5 
United  States  would  not  descend  to  make  this 
person  tell  a  falsehood ;  but  there  is  a  portion 
of  the  cause  which  may  come  when  there  may  be 
other  parties  upon  whom  may  be  fixed  the 
cruelty  of  having  committed  this  perjury  in  the 
first  instance.  In  the  first  place,  it  was  at 
Christiana  and  Lancaster,  and  upon  other  ex- 
aminations, if  on  oath,  but  the  perjury  was  upon 
the  stand.  We  know  them  to  be  the  facts,  and  we 
had  other  evidence  to  show  all  these  things  so 
clearly  that  no  one  could  doubt  that  this  man 
was  frightened  to  be  a  witness  in  this  cause. 

And  he  is  prostrated  here,  because  he  happens 
to  be  a  poor,  miserable  negro.  Now  I  do  object 
at  this  state  of  the  cause,  when  we  supposed  that 
no  one  but  Dr.  Pierce  was  to  be  examined,  and 
when  we  had  understood  we  had  closed  the  case, 
to  examine  this  man  who  has  not  the  moral  force 
to  say  what  he  pleases. 


168 


TREASON  CASES. 


Mr.  Cooper.  I  desire  to  submit  a  single  re- 
mark. I  care  very  little  about  this  matter  of 
Harvey  Scott.  I  think  it  was  put  upon  a  cor- 
rect footing  b}7  the  Court,  although  I  think  it 
perfectly  competent  to  show  that  the  enemy  have 
ploughed  with  our  heifer.  And,  if  my  colleagues 
are  agreed,  I  am  perfectly  willing.  I  will  mere- 
ly state  that  this  negro  is  not  so  shallow-minded, 
he  it  a  man  that  can  tell  a  straight-forward  tale. 
And  it  was  not  through  fear.  I  am  perfectly 
willing  to  do  justice  to  the  counsel  on  the  part  of 
the  prisoner,  in  all  sincerity,  and  to  concede  to 
them  what  they  were  willing  to  do  with  the  Uni- 
ted States.  I  know  that  they  had  no  hand  in 
doing  what  has  been  done,  but  there  is  enough 
in  the  evidence  piain  to  the  eyes,  to  show  how 
this  thing  may  have  been  done.  We  see  a  crowd 
of  men,  slick,  well-clad,  and  in  uniform,  by  the 
kindness  of  some  persons.  These  are  the  per- 
sons accused.  Here  comes  in  a  poor  witness, 
ragged,  dirty,  and  filthy,  so  that  it  is  perfectly 
evident  there  was  a  different  degree  of  care 
manifested  to  a  certain  class,  more  than  there 
was  manifested  to  another  class. 

Mr.  Stevens.  It  is  not  possible  to  my  weak 
perceptions,  to  see  the  propriety  or  dignity  of 
this  course  of  proceeding  in  a  trial  for  high 
treason.  The  United  States,  (no,  sir)  the  State 
of  Maryland  rises  here,  and  through  one  of  the 
honored  citizens  of  Pennsylvania,  imputes  to  the 
defence,  tampering  with  their  witnesses,  who  had 
been  kept  separate  from  the  defence  in  this 
cause,  even  the  colored  individual,  and  to  whom 
we  have  no  access.  For  he  was  committed 
merely  as  a  witness,  and  our  people  had  (and 
could  have)  no  intercourse  with  him.  And  thus 
it  seemed  a  reproach  to  us,  charging  us  with 
tampering  with  a  witness  for  the  United  States. 
That  we  have  not  approached  him,  and  fed  and 
clothed  him,  and  bribed  him  through  our  kind- 
ness, to  become  a  perjured  witness. 

I  do  not  understand  the  consistency  or  justice  in 
these  imputations.  I  had  hoped  nothing  of  thi 
kind  would  be  done  in  this  Court.  But  when  such 
charges  are  made,  it  is  our  duty  to  refute  them. 
It  is  not  proved  that  we  have  spoken  to  him.  I 
have  no  objection  they  should  have  given  this 
man.  If  they  believed  he  was  at  Christiana,  it 
was  their  duty  to  the  client  and  prosecution  to 
have  produced  him  as  a  witness-in-chief,  to  prove 
the  fact  and  not  have  left  that  fact  upon  the  rot- 
ten testimony  of  a  single  witness.  Why  did 
they  not  produce  him  ?  Why  keep  him  back  to 
the  last  moment  ?  I  would  say,  they  di-strusted 
his  testimony,  but  they  knew  what  had  been 
proved  about  him,  on  his  examination  before. 
More  witnesses  can  be  produced  yet  in  their  dis- 
cretion ;  they  saw  fit  to  produce  him  ;  and  to  per- 
jure himself  to  support  Kline,  was  damning  their 
own  cause,  in  the  estimation  of  every  honest 
man,  and  they  prudently  withheld  him.  But 
when  Kline's  testimony  had  been  crushed  to  the 
earth,  they  seemed  to  be  goaded  to  frantic  mad- 
ness, and  they  brought  him  to  fill  up  their  case. 
He  knew,  (because  what  we  have  sworn  and 
proved  unquestionably  to  be  true,)  they  are  to 
prove,  that  on  a  former  occasion  he  perjured 
himself,  under  the  care  of  Alderman  Reigart  and 


Kline.  I  am  contending  that  this  course  is  ne 
cessary  for  us  to  pursue.  I  hope  we  shall  here- 
after confine  ourselves  to  the  evidence  in  the 
cause.  I  shall  do  so  as  far  as  I  can,  unless  I  am 
compelled  to  repel  the  imputations  which  seem 
to  be  cast  upon  us. 

Mr.  Geo.  L.  Ashmead.    My  colleagues  have 
already  said,  that  if  the  other  side  objected  to 
this  evidence,  we  will  withdraw  the  witness,  and 
we  have  already  offered  to  do  so. 
Dr  Pierce  is  re-called 

Mr.  Brent.  You  have  stated  you  expressed 
the  opinion,  that  if  in  consequence  of  Hanway's 
turning  back  and  saying  something  to  the  ne- 
groes, it  may  have  saved  your  life.  Will  you 
state  all  the  opinions  you  expressed  on  that  sub- 
ject, and  the  whole  of  the  opinions  you  expressed 
at  the  time,  and  explain  the- opinions  you  gave, 
and  what  you  meant  to  give  ? 

Mr.  Stevens.  He  is  called  upon  to  state  as  to 
what  he  meant.  It  is  going  over  the  same 
ground;  I  would  suggest,  it  is  not  the  proper  way. 
Mr.  Brent.  Well,  what  did  he  give  ? 
Judge  Grier.  I  understand  that  the  Dr.  was 
examined  that  he  might  make  an  explanation  for 
the  purpose  of  giving  testimony  on  a  particular 
point.  It  is  not  usual  to  bring  a  witness  back  to 
go  over  the  same  ground  again,  and  to  repeat 
what  was  said  before.  And  if  it  were  the  case,  I 
do  not  know  who  would  have  a  right  to  the  last 
repetition. 

Mr  Brent.  Something  has  been  said  about 
Mr.  Kline's  being  a  coward ;  I  want  to  ask  what 
Mr.  Kline's  conduct  was. 

Answer.    I  conceive  Mr.  Kline's  conduct — 
Mr.  Stevens.    Wait  a  moment.    I  object  to 
it.    If  he  tells  what  he  did,  I  have  no  objection. 

Mr.  Brent.  State  whether  he  acted  as  a  cool, 
collected  man. 

Answer.  I  think  he  acted  with  marked  deter- 
mination and  vigor  throughout  the  whole  affair. 

Question.  Dr.  Patterson  has  stated  that  you 
expressed  an  opinion,  that  Kline  had  acted  as  a 
coward. 

Mr.  Stevens.  I  object  to  it,  this  is  not  the 
proper  way. 

Mr.  Brent.  I  have  a  right  to  contradict  Mr. 
Paterson. 

Mr.  Stevens.  Then  I  will  call  Dr,  Patterson 
again. 

Judge  Grier.  It  is  precisely  like  a  game  of 
whist,  that  I  have  alluded  to  before. 

Mr.  Brent.  It  is  stated  in  your  evidence, 
page  129,  that  in  answer  to  the  question,  Did  he 
run  from  or  towards  the  house?  you  answered— 
He  was  running  from  the  house.  I  want  to  know 
if  that  is  correct  or  not  ? 

Answer.  No,  sir.  I  saw  him  running  towards 
the  house. 

Mr.  Dickinson  Gorsuch  is  recalled. 
Mr.  Brent.  It  is  stated  you  testified  to  having 
seen  but  one  of  your  father's  slaves — on  page  145 
in  testimony — 

Question.  Did  you  see  any  slaves  of  Edward 
Gorsuch  there  ? 

An  saver.    I  saw  one. 
Question.    What  was  his  name  ? 
Answer.    His  name  was  Noah 


UNITED  STATES   V .  HAXWAY. 


1(39 


Question.    Noah  what  ? 

Answer.    They  call  Mm  Noah  Buley." 

I  want  to  know  if  that  is  the  case  or  not  ? 

Answer.    I  saw  two.    Noah  and  Joseph. 

Mr.  G.  L.  Ashmead.  May  it  please  your 
honors,  we  close  the  rebutting  testimony  on  the 
part  of  the  United  States. 

Mr.  Stevens.  The  testimony  is  closed  if  your 
honors  please. 

Judge  Grier.  Are  the  counsel  for  the  United 
United  States  prepared? 

Mr.  Ludlow.    Yes,  sir. 

Judge  Grier.  What  is  the  arrangement 
ah  out  the  speakers  ? 

Mr.  Ashmead.  I  understood  that  three 
speeches  should  be  made  on  each  side,  and  we 
have  adapted  ourselves  exactly  to  this  arrange- 
ment. 

Judge  Grier  As  this  is  the  first  case  of  the 
kind,  and  as  it  is  one  of  high  importance,  involving 
the  life  and  death  of  this  man.  I  have  sat  down, 


10th  of  September,  by  the  arrival  of  one  Wil- 
liams, at  Christiana. 

He  brings  with  him  intelligence  which  is  to 
affect,  and  which  does  ultimately  affect  the 
peace  of  the  community,  in  the  death  of  an 
unoffending  man.  About  the  time  (you  will 
notice  these  facts  particularly)  about  the  time 
that  this  man  Williams  arrived  at  Christiana, 
certain  gentlemen  from  the  State  of  Maryland 
in  pursuit  of  a  lawful  calling,  were  proceeding 
to  a  house  situated  in  a  valley,  for  the  purpose 
of  claiming  fugitives  from  labor.  They  are 
startled  as  they  proceed,  by  various  sounds  of 
horns,  bugles,  and  other  instruments.  A  legiti- 
mate result,  may  it  please  your  honors,  and 
gentlemen,  of  the  news  which  had  the  previous 
day  been  brought  into  the  County.  They  arrived 
at  the  scene  >of  action,  the  sounds  are  repeated, 
this  communication  from  house  to  house,  from 
farm  to  farm,  and  valley  to  valley,  is  there  re- 
newed, and  what  do  thev  meet  ?  An  infuriated. 


and  so  continue,  with  the  determination  to  give  lawless,  determined  band  of  negroes  assembled 
the  utmost  limit  that  shall  be  required  on  both  together,  as  we  will  next  show  you  for  the  ex- 


sides,  and  though  it  is  unusual  to  hear  more  than 
two,  I  am  willing  to  hear  three,  if  that  is  the 
order  you  have  arranged  among  yourselves. 

Mr.  G.  L.  Ashmead.  That  i's  the  arrange- 
ment we  have  come  to  between  the  parties. 

Mr.  James  B..  Ludlow  then  commenced  to  sum 
up  for  the  prosecution  a?  follows : 

With  submission  to  the  Court.  Gentlomen  of 
the  Jury.  We  now  proceed  on  the  part  of  the 
Government  to  sum  up  the  evidence  which  has 
been  produced  in  this  cause,  and  by  a  careful 
analysis  of  it,  to  show  (we  think  to  your  satis- 
faction,) that  the  prisoner  at  the  bar  is  guilty 
in  the  manner  and  form  in  which  he  stands  in- 
dicted. My  learned  friend,  the  District  Attor- 
ney, in  his  opening,  told  you,  he  came  not  here 
"to  seek  or  demand  innocent  blood.  With  that 
remark,  may  it  please  your  Honors,  I  most 
heartily  concur.  The  Government  of  the  United 
States,  whose  representatives  we  are  this  day, 
is  by  far  too  benevolent,  to  descend  to  so 
mean  a  position.  The  foundation  of  this  pro- 
secution, is  the  Constitution,  its  support,  the 
law  of  the  land.    We  appeal  therefore,  gentle- 


press  purpose  of  rescuing  the  slaves  of  Mr. 
Gorsuch,  and  of  defying  the  authority  of  the 
officers  under  the  law,  so  that  when  the  Marshal 
proceeds  to  read  to  them  the  warrants,  the  au- 
thority with  which  he  was  clothed,  as  an  officer 
of  the  law:  they  resist. 

But,  mark !  they  are  beginning;  to  feel  that 
perhaps  there  is  something  wrong  here.  They 
ask  for  time  to  consider,  and  were  about  (as  the 
evidence  will  prove  to  you)  giving  up,  when  the 
prisoner  at  the  bar.  whom  we  charge  to  be  (as 
we  think  we  can  show  it)  the  leader  in  the  con- 
spiracy, makes  his  appearance.  Instantly  the 
scene  is  changed,  they  take  courage  and  rush 
down  the  lane,  and  the  result  is,  they  murder  a 
man  in  cold  blood.  After  they  rescue  the  slaves, 
for  which  that  man  came,  they  proceed  to  the 
other  acts  of  violence  which  have  been  narrated 
from  the  witness  stand.  But  Hanway,  having 
once  joined  that  assembly  of  men,  acts,  as  I  shall 
hereafter  show,  acts  as  it  is  supposed  he  would 
have  acted,  had  he  occupied  the  position  we  have 
assigned  him.  He  distinctly,  positively,  and  re- 
peatedly, refuses  to  assist  the  officer.   It  is  an  il- 


men,  to  the  law  and  to  the  evidence,  and  if  they   legal  act.    In  addition  to  that,  (and  I  am  now 


be  not  with  us,,  and  for  us.  acquit  the  prisoner. 
In  order  that  you  may  distinct  y  understand  the 
law,  and  be  enabled  in  a  measure,  to  wind 
through  the  labyrinth  of  evidence  produced  in 
this  cause,  we  shall  direct  your  attention  to  cer- 
tain distinct  propositions,  and  we  hope  thereby  to 
be  enabled  to  make  the  matter  more  plain,  and 
that  you  will  be  assisted  in  arriving  at  what 
I  myself,  may  say,  is  the  great  object  of  all 
judicial  investigations,  to  wit  :  the  truth.  In 
the  first  place,  may  it  please  your  Honors,  I 
shall  review  the  evidence  which  has  been 
submitted  in  this  cause,  and  show  that  the 
lamentable  occurrences,  which  disgraced  the 
State  of  Pennsylvania  upon  the  1 1th  of  Septem- 
ber last,  constitute  the  crime  of  treason,  and 
that  this  prisoner  at  the  bar,  was  a  guilty  par- 
ticipant in  that  crime.  Allow  me  to  call  your 
attention  to  a  short  history  of  the  facts,  in  their 
chronological  order.    This  tragedy  opens  on  the  ' 


taking  simply  the  evidence  from  the  prosecution, 
because  I  shall  notice  the  evidence  for  the  defence 
more  fully  hereafter,)  he  makes  certain  exclama- 
tions that  the  law  he  would  not  read,  he  did  not  care 
for  that  law  or  any  other  Act  of  Congress,  and 
moving  his  horse  in  the  direction  of  the  conspi- 
ratortv  what  does  he  do?  He  whispers  to  them 
those  important  words  which  shall  never  be 
known,  but  the  effect  of  which  was  a  bloody  on- 
slaught upon  every  white  man  upon  the  ground, 
except  the  prisoner  and  his  friend  LewisT 

Now,  after  this  brief  narrative,  may  it  please 
your  Honors,  what  is  the  law  on  this  subject  ?  It 
has  been  fully  commented  upon  by  my  friend  the 
District  Attorney  in  his  opening,  but  it  is  neces- 
sary for  me  to  introduce  it  again  here,  and 
your  Honors  will  therofore,  I  hope,  allow  me  to 
go  on  to  the  Constitution  of  the  United  States, 
Article  3d,  Section  3d,  which  reads  as  follows : 
"  Treason  against  the  United  States  shall  consist 


170 


TREASON  CASES. 


only  in  levying  war  against  them,  or  in  adhering  to 
their  enemies,  giving  them  aid  and  comfort.  No 
person  shall  be  convicted  of  treason,  unless  on  the 
testimony  of  two  witnesses  to  the  same  overt  act,  or 
on  confession  in  open  court." 

The  term  "levying  war"  is  that  particular 
term  which  we  are  to  explain,  and  endeavor 
to  arrive  at  the  legal  signification  of  As  has 
been  remarked,  this  is  the  express  language 
of  the  Statute  twenty-five,  Edward  Third,  chap- 
ter second.  The  words  "levying  war,"  are 
-ised  in  our  Constitution  as  they  are  there 
used. 

It  is  needless  for  me  now  to  say  that  that 
is  the  opinion  of  all  the  judges,  and  I  will 
not  occupy  the  time  of  your  Honors  to  show  that 
Judges  Peters  and  Chase,  and  Chief  Justice  Mar 
shall,  have  all  agreed  that  the  term  as  stated  in 
the  Constitution  is  taken  from  the  English  act. 
But  we  have  heard  here  of  the  English  law, 
and  if  I  mistake  not,  my  learned  friend  on  the 
other  side  said  that  such  Judges  as  Scroggs 
and  Jeffreys  have  lived.  But  where  will  he 
stand  when  I  show  him  the  interpretation  we 
shall  insist  upon,  is  put  upon  it  by  such  men  as 
Hale,  Foster,  and  Mansfield.  Sir,  you  could  not 
bring  to  the  notice  of  posterity,  men  who  would 
more  glory  in  all  that  is  pure  and  holy,  and  I 
may  say,  men  possessed  of  more  dignity  and  no- 
bleness of  character,  than  the  judges  whose 
names  I  have  quoted.  Sir,  that  term  levying 
war  and  the  explanation  of  it,  is  attributable  en- 
tirely to  their  decisions.  And  if,  sir,  there  was 
blood  and  bloody  deeds,  and  judges  who  were 
willing  to  lend  themselves  to  all  the  transactions 
of  that  most  dishonorable  period  of  English  his- 
tory, there  are  others,  sir,  whom  they  will  not,  I 
am  persuaded,  dare  to  attack.  Well,  sirs,  what  is 
the  English  law  upon  this  subject  ?  I  will  read 
it  to  your  Honors,  and  give  you  the  authorities. 

The  uniform  and  undivided  language  of  the 
Court  is,  that 

"  If  divers  persons  levy  a  force  of  multitude  of 
men  to  pull  down  a  particular  inclosure,  this  is  not 
a  levying  of  war  within  this  statute,  hut  a  great 
riot;  hut  if  they  levy  war  to  pull  down  all  inclosures, 
or  to  expulse  strangers,  or  to  remove  counsellors,  or 
against  any  statute,  as  namely  the  sta.tute  of  La- 
bourers, or  for  inhansing  salaries  and  wages,  this  is 
a  levying  war  against  the  king,  because  it  is  gene- 
rally against  the  king's  laws."   1  Hale,  132. 

See  also,  Foster,  219 ;  Damaree's  Case,  8  St. 
Trials,  218;  15  Howell,  521;  Purchase's  Case, 
8  St.  Trials,  267 ;  15  Howell,  651 ;  4  Bk.  Com. 
82 ;  Lord  George  Gordon,  21  Howell,  485. 

In  this  connection  I  may  also  remark  in  answer 
to  the  case  of  Lord  George  Gordon,  which  was 
quoted  on  the  other  side  in  the  opening  of  my 
friend,  that  in  that  case,  Lord  George  Gordon 
was  acquitted  because  the  jury  did  not  believe 
the  evidence,  or  because  the  evidence  was  not 
sufficient  to  convict  him. 

At  the  same  time  may  it  please  your  Honors,  Lord 
Mansfield  distinctly  lays  down  the  doctrine  which 
I  have  quoted  from  my  notes.  And  if  your  Honors 
will  take  the  trouble  to  examine  that  case  fully, 
you  will  find  it  sustains  the  law  as  laid  down  by 
other  Judges  and  the  United  States  Court.  But 


upon  the  law  decided  by  the  tribunals  in  this 
country  I  have  something  to  say.  Judge  Patter- 
son in  the  trial  of  Mitchell,  (the  United  States 
against  Mitchell,  one  of  the  Western  Insurgents,) 
says, 

"  The  first  question  to  be  considered  is,  what  was 
the  general  object  of  the  insurrection  ?  If  its  object 
was  to  suppress  the  excise  offices  and  to  prevent  the 
execution  of  an  act  of  Congress,  by  force  and  in- 
timidation, the  offence  in  legal  estimation  is  high 
treason  ;  it  is  an  usurpation  of  the  authority  of  gov- 
ernment ;  it  is  high  treason  by  levying  of  war." 

It  is  positive,  distinct,  there  can  be  no  doubt 
about  the  question,  and  it  is  an  usurpation  of 
the  authority  of  the  government,  it  is  high  trea- 
son by  levying  of  war 

Again,  Judge  Iredell,  in  Wharton's  State 
Trials,  page  480,  says, 

"  I  am  warranted  in  saying,  that  if,  in  the  case  of 
the  insurgents  who  may  come  under  your  considera- 
tion, the  intention  was  to  prevent  by  force  of  arms 
the  execution  of  any  act  of  the  Congress  of  the 
United  States  altogether  (as  for  instance  the  land 
tax  act,  the  object  of  their  opposition),  any  forcible 
opposition  calculated  to  carry  that  intention  into 
effect,  was  a  levying  of  war  against  the  United 
States,  and  of  course  an  act  of  treason." 

And  then  again  he  says,  (and  to  this  point  I 
must  request  the  special  attention  of  your 
Honors,) 

"  The  particular  motive  must,  however,  be  the  sole 
ingredient  in  the  case,  for  if  combined  with  a  general 
view  to  obstruct  the  execution  of  the  act,  the  offence 
must  be  deemed  treason." 

Judge  Peters,  sir,  in  a  case  which  I  also  quote 
from,  (in  Wharton's  State  Trials,  page  584,)  re- 
marks, 

"  Though  punishments  are  designated,  by  particu- 
lar laws,  for  certain  inferior  crimes,  which,  if  prose- 
cuted as  substantive  offences,  and  the  sole  object  of 
the  prosecution,  are  exclusively  liable  to  the  penal- 
ties directed  by  those  laws,  yet,  when  committed 
with  treasonable  ingredients,  these  crimes  become 
only  circumstances  or  overt  acts.  The  intent  is  the 
gist  of  the  inquiry  in  a  charge  of  treason ;  and  is 
the  great  and  leading  object  in  trials  for  this  crime." 

Judge  Iredell  also  in  Fries  case,  Wharton's 
State  Trials,  591,  confirms  the  views  1  have  al- 
already  quoted.  Judge  Chase,  in  Fries'  case, 
Wharton's  State  Trials,  634  &  5,  uses  this  lan- 
guage, which  was  quoted  with  approbation  by 
Chief  Justice  Marshal  on  the  trial  of  Aaron  Burr. 

"  It  is  the  opinion  of  the  court,  that  any  insurrec- 
tion or  rising  of  any  body  of  the  people,  within  the 
United  States,  to  attain  or  effect  by  force  or  violence 
any  object  of  a  great  public  nature,  or  of  public  and 
general  (or  national)  concern,  is  a  levying  of  war 
against  the  United  States,  within  the  contemplation 
and  construction  of  the  Constitution." 

It  is  not  necessary  for  me  to  read  further  from 
that  opinion,  for  it  is  a  mere  repetition  of  the 
law  as  previously  decided.  You  will,  therefore, 
perceive,  may  it  please  your  Honors,  that  upon 
the  facts  as  we  have  them  in  proof  here,  the 
whole  transaction  is  to  be  looked  upon  as  a 
violation  of  the  Act  of  Congress — as  a  violation 
of  the  Constitution,  and  therefore  if  we  can 
join  Hanway  with  these  guilty  participants  in 


UNITED  STATES  V.  HANWAY. 


171 


the  outrages  as  they  were  committed  there,  we 
have  proved  the  overt  act  which  is  necessary  to 
constitute  the  crime  of  treason.  And,  that  having 
shown  that  these  negroes  were  aware  of  the  Act 
of  Congress,  and  of  the  presence  of  an  officer  to 
execute  the  Act,  and  in  spite  of  it  all,  proceeded 
to  resist  the  law — taken  in  connection  with  the 
remarks  of  the  defendant  as  detailed  by  Kline, 
and  that  this  went  beyond  a  mere  personal  res- 
cue, for  they  had  actually  rescued  the  slaves 
before  the  attack  was  made — the  slaves  were 
safe  and  gone,  and  the  Gorsuch's  were  leaving 
the  ground — taking  the  whole  transaction  to- 
gether, it  shows  that  according  to  the  law,  this 
man  Hanway,  if  guilty  at  all,  is  guilty  by  virtue 
of  his  presence  upon  the  ground  and  joining  with 
the  conspirators — the  whole  transaction  being 
the  overt  act.  In  order  further  to  enforce  this 
view  of  the  law,  I  will  remark,  that  in  treason 
there  are  no  accessories,  and  therefore  if  this 
prisoner  at  the  bar  was  present  as  I  have  stated, 
he  must  be  guilty  by  virtue  of  his  presence. — if 
we  can  show  a  proper  combination  which  is 
always  to  be  judged  by  the  facts — if  he  was  pre- 
sent, he  must  be  a  principal.  I  read  from  2 
Burr's  Trial,  404,  in  which  Chief  Justice  Mar- 
shall says, 

"  It  is  not  deemed  necessary  to  trace  the  doctrine, 
that  in  treason  all  are  principals,  to  its  source.  Its 
origin  is  most  probably  stated  correctly  by  judge 
Tucker  in  a  work,  the  merit  of  which  is  with  plea- 
sure acknowledged.  But  if  a  spurious  doctrine  have 
been  introduced  into  the  common  law,  and  have  for 
centuries  been  admitted  as  genuine,  it  would  require 
great  hardihood  in  a  judge  to  reject  it.  Accordingly, 
we  find  those  of  the  English  jurists  who,  seem  to 
disapprove  the  principle,  declaring  that  it  is  now  too 
firmly  settled  to  be  shaken." 

Judge  Chase,  in  Wharton's  State  Trials,  p.  636, 
(and  I  should  have  quoted  this  first,)  says, 

11  In  treason,  all  the  participes  criminis  are  prin- 
cipals ;  there  are  no  accessaries  to  this  crime. 
Every  act,  which,  in  the  case  of  felony,  would  ren- 
der a  man  an  accessary,  will,  in  the  case  of  treason, 
make  him  a  principal." 

But  the  intent,  which  is  after  all  the  great  ob- 
ject for  which  we  are  searching  in  this  cause,  the 
intent  as  I  have  before  said,  can  be  proved  by  a 
single  witness,  and  be  deduced  from  the  facts  as 
they  occur.  To  this  point  I  quote  Judge  Chase, 
Wh.  St.  Tr.  636,  in  which  he  says, 

"  If  any  man  joins  and  acts  with  an  assembly  of 
people,  his  intent  is  always  to  be  considered  and 
adjudged  to  be  the  same  as  theirs  ;  and  the  law,  in 
this  case,  judgeth  of  the  intent  by  the  fact." 

Judge  Peters,  Wh.  St.  Tr.  585-6,  advances 
the  same  doctrine  and  also  his  Honor,  the  dis- 
trict judge,  in  his  charge  to  the  Grand  Jury — 
that  the  intent  may  be  proved  by  a  single  wit- 
ness. 

It  may  be  further  advanced  that  inasmuch 
as  Hanway  was  not  armed,  he  was  not  guilty. 
It  is  perfectly  well  settled  that  arms  are  not 
necessary.  Treason  may  be  committed  where 
there  is  not  the  presence  of  a  single  armed  man. 
This  is  the  law,  and  I  can  show  it.  I  again 
quote  from  Wharton,  page  634,  showing  clearly 
that  military  weapons  are  not  necessary. 


"  The  court  are  of  opinion,  that  military  weapons 
(as  guns  and  swords,  mentioned  in  the  indictment) 
are  not  necessary  to  make  such  insurrection  or 
rising  amount  to  a  levying  war,  because  numbers 
may  supply  the  want  of  military  weapons,  and  other 
instruments  may  effect  the  intended  mischief.  The 
legal  guilt  of  levying  war  may  be  incurred  without 
the  use  of  military  weapons  or  military  array." 

This  opinion  of  Judge  Chase,  is  sustained  in  1 
Paine,  271  ;  in  2  Burr's  Trial,  414.  Chief  Justice 
Marshall  quotes  the  opinion  of  Judge  Chase,  and 
sustains  it  to  the  letter.  It  may  be  alleged  that 
Judge  Chase  was  impeached,  and  that  his  opi- 
nions are  of  little  weight.  Whatever  may  have 
been  the  grounds  of  that  impeachment,  it  is  not 
for  us  to  discuss,  but  when  I  show  that  his  opi- 
nions have  been  sanctioned  by  Chief  Justice 
Marshall,  I  am  sure  my  learned  friends  on  the 
other  side  will  require  me  to  go  no  further. 
Judge  Marshall  also  adds  further  weight  to  this 
doctrine,  when  on  page  411,  2  Burr,  he  remarks, 

"Judge  Foster,  in  his  valuable  treatise  on  treason, 
states  the  opinion  which  has  been  quoted  from  Lord 
Hale,  and  differs  from  that  writer  so  far  as  the  latter 
might  seem  to  require  swords,  drums,  colors,  &c, 
which  he  terms  the  pomp  and  pageantry  of  war,  as 
essential  circumstances  to  constitute  the  fact  of 
levying  war.  In  the  cases  of  Damaree  and  Pur- 
chase, he  says  'the  want  of  those  circumstances 
weighed  nothing  with  the  court  although  the  priso- 
ner's counsel  insisted  much  on  that  matter.'  " 

But  it  may  be  said  that  this  man  Hanway,  had 
little  or  nothing  to  do  with  this  transaction.  In 
4  Cranch  126,  Chief  Justice  Marshall,  again 
says, 

"  If  war  be  actually  levied,  that  is,  if  a  body  of 
men,  be  actually  assembled  for  the  purpose  of  effect- 
ing by  force  a  treasonable  object,  all  those  who  per- 
form any  part,  however  minute,  or  however  remote, 
from  the  scene  of  action,  and  who  are  actually 
leagued  in  the  general  conspiracy,  are  equally 
traitors." 

I  have  thus  may  it  please  your  Honors,  rapidly 
passed  over  what  may  be  considered  to  be  the 
law  of  this  case.  I  omitted  to  quote  the  opinion, 
as  to  what  amounted  to  levying  of  war,  of  Judge 
Story,  which  has  already  been  read  by  Mr.  Ash- 
mead  in  his  opening — and  to  refer  to  the  opinion 
of  his  Honor,  the  district  judge,  sustaining  these 
general  views  of  what  is  levying  war.  But  there 
is  one  single  solitary  case,  that  is  to  destroy  all 
the  law  on  the  subject  for  the  last  hundred 
years — and  that  case,  is  the  United  States  vs. 
Hoxie,  so  eloquently  commented  upon  by  my 
learned  friend  in  his  opening  for  the  defence. 
In  that  case  if  you  will  examine  it,  you  will  per- 
ceive that  the  sole  object  and  intent — and  so 
avowed  and  expressed — of  the  party  who  went  to 
seize  the  raft,  was  to  steal  it  away.  So  much 
for  that.  But  suppose  it  is  law,  which  I  doubt 
and  deny — it  is  the  only  solitary  exception  to  all 
the  cases  upon  the  subject. 

But  I  may  here  notice,  what  perhaps  was  in- 
tended to  weigh  with  the  jury — that  this  man 
Hanway — the  miller  in  his  shirt  sleeves,  and  with 
the  felt  hat  on,  intended  to  levy  war  against  the 
United  States.  Sir,  it  struck  me  painfully — ridi- 
culous as  the  description  seemed — it  struck  me 
painfully,  when  I  remembered,  that  within  a  fev/ 


172 


TREASON  CASES. 


feet  of  that  same  miller,  lay  a  man — dead — and 
within  six  hundred  yards  of  him  was  another,  rid- 
dled with  shot,  and  sir,  in  addition  to  that — if  the 
evidence  for  the  prosecution  is  to  be  believed — 
that  that  man  had  instigated  these  blacks  to  do 
these  deeds  of  horror.  You  need  not  tell  me,  that 
to  lead  a  set  of  conspirators,  you  are  to  be  armed 
and  arrayed  in  all  the  panoply  of  war.  It  is  not 
law  nor  fact.  Their  general  left  them  when  his 
own  life  was  in  danger,  but  he  commanded  them 
as  efficiently  while  upon  the  ground  ;  they  knew 
him  in  his  every  day  dress. 

I  will  now  proceed  to  comment  upon  the  evi- 
dence ;  and  in  the  first  place,  Gentlemen  of  the 
Jury,  I  shall  attempt  to  prove  that  by  the  ordi- 
nary principles  of  our  nature,  this  man  must 
either  be  innocent,  or  guilty,  and  that  he  would 
have  exhibited  that  innocence  or  guilt  upon  the 
spot.  Now,  may  it  please  your  Honors,  what  is 
the  conduct  of  a  man  when  he  is  enraged  ?  He 
acts  it ;  when  afraid,  he  shows  it ;  when  ashamed, 
he  will  blush  ;  if  innocent,  it  will  appear ;  if 
guilty,  he  will  also  enable  you  to  read  it  in  his 
movements.  This  man,  therefore,  is  either  inno- 
cent or  guilty.  If  he  is  the  innocent,  injured  man 
which  it  is  said  he  is,  what  would  have  been  his 
conduct  when  he  arrived  upon  that  ground  ? 
govern  it  by  the  ordinary  principles  of  our  na- 
ture. Suddenly  he  sees  the  assembled  band  of 
infuriated  men ;  he  has  accidentally,  you  may 
say,  or  for  the  purposes  of  justice,  which  makes 
it' the  worse  for  him,  appeared  there.  He  would 
either  have  left  the  spot,  or  he  would  have  made 
strenuous  and  decided  efforts  to  restrain  the  ne- 
groes. Does  he  leave  the  spot  ?  No,  sir.  Does 
he  restrain  the  negroes?  Take  the  evidence  for 
the  defence  in  its  fullest  latitude,  and  you  will 
perceive  he  raised  the  feeble  cry,  "  Don't  shoot, 
for  God's  sake  don't  shoot!"  and  there  it  ended. 
Is  that  consistent  with  innocence  ?  Again  it 
may  be  said,  he  came  there  for  the  purposes  of 
justice.  What  would  have  been  the  conduct  of  an 
innocent  man  under  such  circumstances?  Sup- 
posing that  he  had  only  resided  in  that  county 
for  a  few  years,  he  knew  these  men  better  than 
the  strangers  from  Maryland  did,  and  as  soon  as 
lie  saw  the  Marshal  was  present,  he  would  have 
said,  here  is  authority,  hold  back,  stop  this  pro- 
ceeding; you  are  guilty  of  murder,  and  I  know 
not  what  else  you  may  be  involving  yourselves  in." 
Does  he  do  it?  This  innocent  man,  this  miller 
on  a  sorrel  nag,  and  with  a  felt  hat  on,  and  with- 
out a  coat,  does  he  do  it  ?  No,  sir.  According 
to  their  own  evidence,  the  conclusion  is  irre- 
sistible, that  he  was  not  innocent. 

What  would  be  the  conduct  of  a  guilty  man 
upon  that  occasion  ?  If  he  had  been  an  ignorant 
one.  we  can  easily  perceive  what  he  would  have 
done.  He  would  have  rushed,  as  did  these 
blacks,  right  into  the  middle  of  the  fight,  he 
would  by  some  overt,  positive  act,  have  con- 
victed himself  upon  the  spot.  But  with  all  the 
shrewdness  of  a  leader,  he  just  so  far  mingles  in 
the  affray,  as  to  direct  it,  and  the  moment  he  has 
started  the  attack  he  makes  good  his  escape. 

But  he  does  more  than  this,  He  has  forgotten 
himself — he  forgets  where  he  is  and  who  are 
present,  and  in  the  agitation  of  the  moment,  he  is 


thrown  off  his  guard,  and  exclaims  "  I  will  not 
assist  you" — "he  allowed  the  colored  people  had 
a  right  to  defend  themselves;"  he  rode  his  horse 
over  the  lane  where  some  fifteen  or  twenty  ne- 
groes were  stationed,  and  having  stooped  over, 
he  said  something  to  them  in  a  low  tone  of  voice 
and  wheels  his  horse  from  the  immediate  range 
of  the  guns,  and  they  fire.    But  sir,  he  forgot 
that  he  had  used  another   expression,  which 
fixes  still  deeper  upon  him  the  stain  of  guilt.  "He 
didn't  care  for  that  Act  of  Congress  or  any  other 
Act  of  Congress," — and  this  innocent,  prudent 
man — this  quiet  unoffending  citizen,  in  the  hurry 
of  the  moment  exhibits  the  justice  for  which  he 
had  come  to  the  spot.    But  you  may  say  this 
was  only  listened  to  by  Kline,  and  that,  there- 
fore, Kline  was  a  single  uncorroborated  wit- 
ness.   Sir,  Dr.  Pierce  swears  to  what  amounts, 
after  all,  to  very  much  the  same  thing,  it  shows 
the  feeling  of  the  man.    He  said  to  you,  that  he 
was  enraged  at  the  time,  that  harsh  words  passed 
between  them,  which  rebuts  the  idea  that  he 
came  there  to  do  justice,  and  he  also  adds  that 
this  man  Hanway  refused  to  assist.    I  may  also 
suggest,  that  Dickinson  Gorsuch,  N.Hutchingsand 
Nathan  Nelson,  all  swore  to  the  same  thing,  and 
the  prisoner  knowing  it,  allows  his  own  witnesses 
to  swear  to  it.  He  refused  to  assist,  and  Dr.  Pierce 
says  that  he  said,  "  you  need  not  come  here  to 
make  arrests,  you  can't  do  it!"    If  the  evidence 
for  the  prosecution  is  to  be  believed,  there  is  the 
end  of  the  case,  for  no  man  in  his  senses  can  be- 
lieve that  evidence,  and  think  for  a  moment  that 
Hanway  was  an  innocent  man,  because  his  acts 
are  not  consistent  with  the  idea  of  innocence ; 
on  the  contrary  they  show  that  he  was  a  guilty 
participant  in  the  crime,  and  the  intent  with 
which  he  acted  is  to  be  discovered  by  the  evi- 
dence which  I  have  read  in  your  hearing,  in  the 
very  language  of  the  witness,  in  which  he  ex- 
pressly says  he  did  not  care  for  that  Act  of  Con- 
gress or  any  other  Act,  and  that  they  could  not 
take  their  slaves.    But  we  have  overwhelming 
evidence  it  is  alleged,  on  the  part  of  the  defence, 
evidence  which  it  is  utterly  impossible  to  resist, 
and  which  must  at  once  secure  a  verdict  of  ac- 
quittal, and  I  believe  my  learned  friend  asked 
for  a  certificate  of  good  character.    What  is  that 
evidence?    Who  leads  the  way  ?    Elijah  Lewis, 
who,  it  is  alleged  is  a  conspirator,  who  is  now  in 
the  jail  of  this  county,  awaiting  his  trial  for  this 
crime.    He  is  called  to  rebut  every  thing.    I  do 
say  that  that  man's  evidence,  according  to  all 
known  principles,  is  to  be  weighed  with  the  ut- 
most caution.    I  will  not  here  impute  to  him 
perjury,  I  do  not  wish  to  do  it,  God  forbid  that 
I  should  do  it,  unless  positive  he  was  swearing 
falsely,  which  of  course  I  am  not,  but  according 
to  every  principle  which  I  have  suggested,  he 
would  shape  his  course  so  as  to  swear  his  friend, 
who  was  the  leader,  he  being  the  lieutenant,  out 
of  the  difficulty,  and  his  friend  would  come  and 
swear  him  out  in  turn. 

But  I  was  astonished  by  the  result  of  his  evi- 
dence ;  that  a  man  who  pretended  to  have  been 
upon  the  spot,  could  have  seen  so  little  that  affects 
the  merits  of  this  case.  Elijah  Lewis  heard  Han- 
way refuse  to  assist  the  officer.    That  is  clear, 


UNITED  STATES  V.  HAN  WAT. 


173 


that  is  undisputed.  The  next  thing  he  hears  is, 
that  Hanway  said,  "  Don't  shoot  boys;  for  God's 
sake,  don't  shoot!"  and  then  Lewis,  having  a 
proper  regard  for  the  justice  of  the  case,  and  the 
safety  of  the  Maryland  gentlemen,  makes  good 
his  escape  to  the  woods.  I  need  not  hardly  re- 
mark in  passing,  that  Lewis  is  flatly  contradicted 
by  all  the  witnesses  for  the  prosecution,  and  you 
have  but  to  refer  to  the  testimony  to  see  it- 
There  was  not  time  between  the  reading  of  the 
warrants  by  Kline  to  Hanway  and  Lewis?  aucl 
the  firing  either  in  the  short  lane  or  the  long 
lane, — there  was  not  time  for  Mr.  Hanway  to 
have  made  use  of  the  expression,  and  Mr.  Lewis 
to  have  escaped  to  the  woods  before  there  was 
firing.  It  was  an  impossibility  for  Mr.  Lewis  to 
have  gone  the  distance,  up  a  hill  with  a  rise  of 
twenty-seven  feet,  and  a  distance  of  some  two 
hundred  and  fifty  feet,  to  the  woods,  and  stationed 
himself  there,  before  there  was  firing  in  the  lane ; 
because,  if  you  will  recollect,  every  witness  for 
the  prosecution,  (and  they  have  not  attempted  to 
swear  most  of  them  out  of  court,  as  in  the  case 
of  Kline,)  Dr.  Pierce,  Dickinson  Gorsuch,  Joshua 
Gorsuch,  N.  Hutchings,  and  Nathan  Nelson,  all 
swore  to  the  fact  that  that  firing  was  immediately 
upon  the  conversation  between  Kline  and  Han- 
way. I  say,  therefore,  gentlemen,  that  this  man  J 
Lewis,  in  his  fright  it  may  be,  in  his  desire  to 
state  a  story  here  which  should  be  as  favorable 
as  possible  to  the  prisoner  at  the  bar,  has  shown 
he  could  not  have  heard  all  the  conversation  that 
took  place. 

You  will  notice  one  thing  in  their  testimony  as 
to  what  he  says  of  Kline.  We  will  show  that  he 
is  contradicted  up  and  down  in  what  he  says  of 
Kline.  He  sees  nothing  of  Hanway  going  down 
the  lane  ;  he  sees  nothing  of  his  being  met  by 
Joshua  Gorsuch  and  Dr.  Pierce  ;  all  that  escapes 
his  notice.  And  then  he  says,  to  wind  up  with 
the  story  of  Lewis,  that  after  he  got  into  the 
woods,  and  had  been  there  sometime,  he  saw  the 
smoke  of  a  gun. 

It  is  for  you,  gentlemen  of  the  jury,  to  say 
whether  you  believe  his  story,  or  whether  you 
believe  he  might  not  have  been  mistaken  ;  and 
it  is  for  you  to  remember  that  every  reason  in 
the  world  urged  that  man,  Lewis,  to  tell  the  best 
story  he  could  for  the  cause,  and  as  little  as  he 
could,  and  at  the  same  time  escape  the  charge 
of  perjury.  But  there  is  another  point  of  view 
in  which  you  can  look  at  his  testimony.  If  he  is 
to  be  believed  at  all,  he  escaped  as  soon  as  he 
could  from  the  scene  of  action.  If  that  is  the 
case,  it  is  to  be  presumed  that  many  things 
might  have  occurrred  which  he  didn't  see,  and 
many  conversations  might  have  taken  place,  that 
he  did  not  hear.  And  you  will  observe,  that 
Kline  says,  that  when  Hanway  crossed  the  lane 
to  the  negroes,  Lewis  had  his  back  to  him,  going 
up  the  long  lane  to  the  woods ;  if  that  were  true, 
he  of  .  course  could  not  see  Hanway  cross  the 
lane,  and  knows  nothing  of  the  transaction.  On 
all  these  grounds  the  evidence  of  this  witness  is 
most  cautiously  to  be  looked  at,  and  well  weigh- 
ed, before  a  conclusion.  It  is  entirely  consistent 
with  the  story  of  Kline,  that  Lewis  should  not 
have  seen  or  heard  what  took  place,  and  there- 


fore he  may  have  sworn  entirely  to  the  truth,  and 
at  the  same  time  have  excluded  something  from 
view,  not,  I  say  intentionally,  but  through  defect 
in  memory  or  because  he  did  not  see  or  hear  it. 

So  much  for  Lewis.  But  we  come  now  to 
another  great  point  of  this  defence.  We  are  to 
be  overwhelmed  because  there  had  been  kidnap- 
pers in  the  county.  When  my  friend  opened 
that  Lancaster  county  contained  the  most  out- 
rageous set  of  miscreants  that  ever  existed,  I 
expected  to  hear  something  about  it.  I  thought 
perhaps  we  would  see  some  one  of  them  on  the 
stand,  or  hear  the  story  of  their  wrongs.  I  always 
believed  the  county  of  Lancaster  to  be  peculiarly 
peaceable,  and  that  the  population  was  of  such 
a  character  as  to  rebut  the  idea  that  they  were 
overrun  by  a  lawless  set  of  miscreants.  If  this 
were  true,  though  we  have  no  evidence  of  it,  I 
would  suggest  that  the  police  force  should  be  in- 
creased, and  that  they  should  no  longer  be  al- 
lowed to  disgrace  Pennsylvania. 

They  proved  that  certain  men  came  to  a  house 
and  stole  away  a  negro.  I  was  amused  when  we 
pressed  them  yesterday  upon  the  point  of  his 
being  a  freemen  or  a  slave,  that  my  learned 
friend  who  sits  opposite  to  me,  took  particular 
caution  to  say  that  they  never  asked  the  ques- 
tion. If  this  is  the  outrage  they  say  it  is,  would 
they  have  allowed  any  point  of  that  importance 
to  pass.  They  say,  we  do  not  allege  he  was  a 
freeman — we  do  not  allege  he  was  a  slave,  but 
he  was  a  black  man/'  The  story,  therefore, 
taking  it  in  all  its  force  amounts  to  this,  that 
some  imprudent  southerners  came  there  and 
under  the  decision  of  the  Supreme  Court  in  the 
United  States  v.  Prigg,  took  with  their  own  hands 
the  slave  that  belonged  to  them,  and  carried  him 
away — or  as  I  am  reminded  by  my  learned  col- 
league, there  is  even  no  evidence  that  there  was 
a  southerner  there,  but  they  were  inhabitants  of 
that  county.  I  have  only  to  say  that  instead  of 
arming  lawless  negro  bands  to  rid  the  county  of 
such  miscreants,  they  should  have  applied  the 
means  given  them  by  the  laws  of  the  State,  and 
had  them  arrested,  tried  and  convicted.  It  is  no 
excuse  for  them  that  they  should  be  thrown  into 
this  excitement  because  their  own  citizens  were 
guilty  of  these  outrageous  acts  ;  but  they  nave 
not  shown  these  were  outrages,  nor  have  they 
even  brought  conviction  to  my  mind  that  these 
men  were  kidnappers  at  all.  And  if  they  were 
— what  then  ?  my  friends  will  remember  that 
Williams  knew  who  was  coming  into  the  country 
— a  kidnapper  ?  No,  may  it  please  your  honor, 
a  set  of  strangers?  No;  but  Kline  was  coming 
there ;  whom  he  knew  to  be  an  officer  of  the  law, 
and  who  in  consequence  of  his  arrival  was  pre- 
sumed to  be  armed  with  competent  authority. 
Where  is  their  defence  now,  as  to  kidnappers  ? 
We  have  traced  the  officer  to  the  spot — we  have 
shown  by  their  own  admissions,  that  there  was  a 
conspiracy — we  have  followed  Kline  from  point 
to  point — always  judiciously  reading  his  war- 
rants, and  we  have  shown  that  notwithstanding 
all,  they  conspired  to  resist — not  a  kidnapper — 
not  a  lawless  man  who  dared  not  set  his  foot 
upon  the  threshold  of  the  house  of  a  decent 
man  in  Lancaster  county,  but  an  officer  of  the 


174 


TREASON  CASES. 


United  States  armed  with  the  process  of  the 
government,  and  known  to  be  such. 

But  they  have  another  point  of  defence,  and 
that  is,  the  character  of  the  prisoner  at  the  bar. 
Now,  may  it  please  your  Honors,  I  do  not  stand 
here  to  vilify  that  man's  character,  or  the  char- 
acter of  any  one.  It  is  easily  to  be  conceived 
that  men,  who  have  not  the  fear  of  the  constitu- 
tion and  laws,  will  stoop  from  the  position  they 
have  always  assumed  in  the  community,  to  out- 
rage both  the  constitution  and  the  laws.  I  could 
bring  to  your  notice,  if  it  were  allowed  me  do  so, 
upon  this  occasion,  a  thousand  men,  who,  while 
they  are  ordinarily,  when  no  subject  of  excitement 
is  before  the  people,  peaceable  and  loyal  citizens, 
yet  when  something  is  done  which  they  do  not  like, 
which  they  may  despise,  are  the  very  men  to  lead 
in  an  aggression  upon  the  law.  You  are  not  to  sup- 
pose that  miserable  vagabonds  are  to  resist  the 
laws  of  the  United  States  unless  urged  on  by  intel- 
ligent men ;  therefore  we  find  that  a  man  who  had 
heretofore  been  innocent,  the  moment  there  is 
an  occasion  for  him  to  display  his  real  character, 
leads  in  the  attack.  I  pity  him,  sir  ;  I  pity  his 
family  and  his  friends.  I  came  not  here  to  war 
against  the  best  sympathies  of  my  own  nature, 
but  to  sustain  the  constitution  and  laws  ;  and  if 
the  blow  strikes  home  to  the  heart  of  many  an 
unfortunate  individual,  it  is  not  my  fault.  My 
duty  is  a  plain  one,  and  I  must  discharge  it. 
But,  sir,  seeing  the  weight  which  we  have  at- 
tached to  the  evidence  of  Kline ;  seeing,  sir,  that 
if  he  is  to  be  believed,  the  prosecution  must 
stand,  they  next  attack  the  character  of  the 
principal  witness  for  the  prosecution.  Who 
opens  the  attack  ?  For,  gentlemen  of  the  jury, 
in  an  investigation  of  this  sort,  you  must  con- 
stantly keep  in  view  the  principles  of  our  com- 
mon nature.  Who  opened  this  attack  ?  A  gen- 
tleman whose  character,  public  and  private,  is 
beyond  suspicion,  but  who,  if  I  mistake  not,  is 
himself  opposed  to  the  law  under  which  these 
occurrences  took  place  ;  tainted  with  the  same 
species  of  notions  which  lead  to  this  court-room  the 
whoba  of  the  township  of  Sadsbury,  and  the  ad- 
jacent parts  of  the  country.  Sir,  they  could 
have  brought  not  one  man,  but  I  had  almost  said 
a  hundred  thousand  men,  who  are  opposed  to 
this  fugitive  slave  law,  to  swear  as  some  of  their 
witnesses  did,  that  they  would  not  believe  a  ne- 
gro catcher  under  any  circumstances  what- 
ever. But,  may  it  please  your  Honors,  this  very 
witness,  feeling  as  he  undoubtedly  does  to  this 
prosecution,  says,  inadvertently,  perhaps,  I  should 
not  say  inadvertently,  for  I  know  he  would  not 
make  a  wrong  statement,  but  he  says,  "  I  would 
believe  him  under  certain  circumstances." 

The  secret  is  out,  he  is  a  negro-catcher,  and  is 
clothed  with  authority  under  the  Fugitive  Slave 
Law.  And  they  follow  it  up  by  a  series  of  wit- 
nesses, some  of  whom  acknowledge  that  they  had 
had  difficulties  with  him.  Others  came  and  stated 
tne  story  of  the  transaction  at  Christiana  where 
Mr.  Kline  was  put  out  of  the  room ;  but  by  Mr. 
Bacon,  we  showed  that  the  feelings  of  these  men 
were  tainted,  not  only  by  the  nature  of  the  pro- 
secution, but  because  they  had  an  ill-will  to  the 
man,  and  came  to  swear  his  character  away. 


Fortunately,  we  were  enabled  to  come  to  the 
rescue ;  and  if  Mr.  Kline  had  any  feeling  the 
day  before  when  he  was  whittled  down  by  the 
defence,  he  must  have  felt  an  inward  satisfaction 
yesterday  which  I  cannot  describe.  Do  you  be- 
lieve that  a  witness,  utterly  and  entirely  worth- 
less— a  liar,  as  my  learned  friend  chose  to  call 
him  in  his  opening — could  produce  seventy  men 
upon  that  stand,  one  after  the  other,  to  swear 
they  never  heard  any  thing  against  his  character 
till  impeached  the  day  previous ;  and  in  addition, 
that  they  would  believe  him  upon  his  oath.  1 
say  it  is  contrary  to  known  principles,  that  any 
man  so  degraded  could  produce  seventy  witnesses, 
and  I  may  add,  that  we  might  have  gone  on  to 
the  number  of  two  hundred  if  we  had  not  been 
in  a  measure  checked  by  an  intimation  from  the 
Court.  Who  are  these  men  ?  Many  of  them 
members  of  the  bar,  men  who  of  all  others  must 
know  the  character  of  the  police-officers  around 
them — for  they  entrust  to  them  the  execution  of 
processes.  We  bring  upon  that  stand  the  Mar- 
shal of  Police — a  man  whose  character  is  high  and 
elevated  in  this  community — an  energetic  officer, 
and  a  gentleman  who  is  in  the  habit  of  scanning 
with  severe  scrutiny  the  characters  of  men  em- 
ployed by  him ;  and  therefore,  from  the  very 
habits  of  his  mind,  he  is  cautious  of  what  he 
believes  and  what  he  does  not.  True  to  the 
truth  and  to  his  nature,  he  says,  "I  would  be- 
lieve him  on  oath,  and  for  my  own  part,  I  may 
add,  I  would  take  his  word  for  it  if  there  were 
thousands  who  would  swear  to  the  contrary." 

In  addition  to  that,  we  put  storekeepers, 
printers,  painters  and  glaziers,  and  police  offi- 
cers upon  the  stand,  and  the  effect  is  that  they 
completely  destroy  that  portion  of  the  defence. 
They  thought  to  sail  upon  a  smooth  sea  when 
they  undertook  it,  and  they  had  strong  men  at 
the  helm  ;  but  unfortunately  for  them,  they  have 
met  with  a  gale  which  has  completely  ship- 
wrecked them.  The  character  of  the  witness  is 
sustained  beyond  a  possibility  of  doubt,  and  he 
may  go  from  this  Court-room,  so  far  as  his 
character  for  veracity  is  concerned,  and  say 
there  is  no  man  now  who  dares  attack  it.  But 
you  will  perceive  he  is  the  main  witness  for  the 
United  States,  in  all  these  treason  trials. 

I  shall  now  proceed  to  notice — having  concluded 
the  main  points  of  the  evidence  for  the  defence — 
I  shall  proceed  to  notice  certa'.n  discrepancies, 
which  it  is  alleged  have  occurred  between  the 
evidence  for  the  prosecution  and  the  defence. 
After  all,  it  turns  upon  this  man  Kline.  Is  he  to 
be  believed  or  not  ?  Has  his  evidence,  as  he 
announced  it  from  the  stand,  been  contradicted 
or  not  in  a  material  point  ?  Now  I  would  re- 
mark that  they  had  an  opportunity  of  throwing 
him  off  his  guard  on  cross-examination,  but  they 
did  not  dare  attempt  it.  They  asked  him  a  few 
general  questions,  and  he  was  allowed  to  depart. 
My  learned  friends  know  well  how  to  cross-ex- 
amine a  witness,  but  they  did  not  do  it  in  this 
case  with  effect.  The  manner  in  which  he  bore 
himself  in  the  presence  of  the  Court,  and  the 
very  nature  of  the  questions  in  cross-examina- 
tion, all  prove  they  could  not — and  the}'-  did  not 
check  him.    Did  Lewis  contradict  him  ?  He  said 


UNITED  STATES  V.  HANWAY. 


175 


he  was  in  the  woods  at  the  time  Kline  was  there. 
He  is  completely  contradicted  by  Dickinson  Gor- 
snch,  who,  if  any  man  ought  to  know  what  oc- 
curred, he  must,  and  who  testifies  that  Kline 
met  him  in  the  lane  as  he  was  going  to  the  woods, 
and  led  him  by  the  arm  and  placed  him  upon 
the  ground  or  a  stump.  There  Lewis  is  contra- 
dicted point  blank,  by  a  witness  whose  character 
cannot  be  impeached,  and  whose  character  they 
have  not  attempted  to  impeach.  You  will  also 
notice  that  Dr.  Pierce  states  in  his  evidence  that 
Kline  was  about  the  spot  when  they  first  met 
Hanway  ;  at  a  time  when,  if  you  believe  Lewis, 
he  could  not  have  been  there.  I  have  before- 
shown  in  the  examination  of  the  evidence  of  Mr. 
Lewis,  that  he  must  have  made  a  very  hasty  re- 
treat, and  could  not  have  remained  there  long 
himself,  if  he  himself  is  to  be  believed. 

But  Dr.  Pierce  in  his  examination  states  con- 
clusively to  my  mind  that  Kline  was  upon  the 
spot  long  after  the  time  it  was  possible  for  him 
to  have  been  there  if  Lewis  is  to  be  believed.  I 
say  therefore  that  to  contradict  him  by  a  half  a 
dozen  witnesses,  as  to  Kline  being  upon  the  spot 
when  Hanway  and  Dr.  Pierce  were  there,  to 
contradict  him  upon  this  must  render  useless  his 
testimony  so  far  as  the  defence  is  concern- 
ed. But  it  has  been  stated  that  Kline  has  said 
upon  various  occasions  to  half  a  dozen  wit- 
nesses, that  he  made  good  his  retreat  to  the 
woods,  and  was  in  the  woods,  I  think  they  said 
before  the  fight  commenced.  In  the  first  place, 
you  are  to  recollect  that  the  stories  which  Kline 
told  of  the  transaction  immediately  after  their 
occurrence,  would  necessarily  be  of  a  very  vague 
nature.  The  man  was  excited,  arrests  were  be- 
ing made  throughout  the  country.  He  was 
stopped  as  the  officer  who  had  been  there  and 
they  would  naturally  ask  him  if  he  did  this  and 
did  that,  to  which  he  would  give  very  vague 
answers.  He  was  not  under  oath  and  there  was 
not  the  solemnity  attached  to  his  answers  then  as 
now.  Take  the  evidence  of  nearly  all  that  class 
of  witnesses,  and  I  shall  view  them  as  as  a  class, 
because  it  has  been  impossible  for  me  in  the 
short  time  I  have  had,  to  obtain  all  their  names,  if 
you  take  the  class  that  swore  to  what  Kline  said 
somewhere  else,  you  will  perceive  that  they  have 
said  nothing  inconsistent  with  Kline's  story,  for 
Kline  is  supported  by  others,  and  their  stories 
go  rather  to  facts  and  circumstances  immaterial 
in  this  issue.  They  say  Kline  said  it  was  time  to 
retreat,  and  that  he  went  to  the  woods :  both  of 
these  are  true.  Kline  did  not  deny  it.  He  called 
upon  Mr.  Gorsuch  to  retire,  and  begged  him  not 
to  remain  upon  the  ground,  and  says  so  himself. 
He  acknowledges  he  was  in  the  woods,  he  was 
where  with  Dickinson  Gorsuch,  and  took  him 
there  after  the  shots  were  fired.  If  then  the  wit- 
ness has  been  shown  to  have  said  nothing  that 
materially  affects  the  main  point  at  issue,  he  has 
not  contradicted  himself. 

But  Dr.  Pierce.  Dr.  Pierce  is  said  to  have 
damned  the  witness  for  the  prosecution.  How?  Be- 
cause Dr.  Pierce  said  he  (Kline)  was  a  poor  thing. 
Now,  may  it  please  your  Honors,  Dr.  Pierce 
never  said  such  a  thing,  and  I  believe  there  has 
been  no  witness  produced  to  swear  Dr.  Pierce's 


character  away.    Dr.  Pierce  admitted  his  uncle 
;  had  acted  rashly,  and  we  may  all  believe  that, 
l  since  we  have  heard  so  much  of  the  case,  but  he 
has  said  that  Kline  acted  courageously,  and  that  he 
never  intended  such  a  remark.  And  I  do  protest 
!  that  the  remarks  of  these  Maryland  gentlemen 
i  when  they  were  excited  and  when  every  feeling 
j  of  the  heart  had  been  worked  up  to  such  a  state 
of  agitation  that  they  hardly  knew  what  they  said, 
that  they  are  brought  up  here  to  swear  away 
their  own  evidence,  and  evidence  which  never 
would  have  been  given  in  the  cooler  moments  of 
the  witness.  We  have  also  shown  that  some  of  the 
'  witnesses  who  had  conversations  with  Kline  have 
been  rebutted  by  the  testimony  for  the  government 
yesterday,  in  which  it  was  conclusively  shown 
that  Kline  had  never  used  the  language  attribut- 
;  ed  to  him.  Then  again  you  must  recollect,  these 
witnesses  for  the  defence  are  brought  from  a  re- 
:  gion  which  as  a  whole  is  infected     It  is  utterly 
!  impossible,   (the  labors  of  the  government  offi- 
j  cers  having  been  immense,  and  beyond  all  con- 
j  ception,)to  get  at  any  facts  and  circumstances, 
unless  it  told  for  the  prisoner. 

I  could  have  brought  hundreds  of  men  to  swear 
to  certain  facts,  but  I  could  not  find  one  who  was 
willing  to  give  me  the  assistance  which  the  go- 
vernment officers   needed,  except  perhaps  an 
|  esquire  in  the  neighborhood  who  kindly  hitched 
;  his  horse  to  his  carriage  and  took  me  to  the  spot. 
,  They  came  here  prepared  to  swear  away  any 
thing  that  might  be  produced  on  the  part  of  the 
prosecution.  They  consider  it  actually  necessary 
they  should  do  so.    While  I  do  not  charge  them 
with  wholesale  perjury,  I  do  say  that  they  may 
tell  facts  and  relate  circumstances  of  which,  as 
j  one  of  the  witnesses  has  said,  they  had  a  very  in- 
distinct recollection. 

You  will  also  notice  in  this  connection  a  single 
fact  to  show  what  the  feeling  was  there.  That 
i  Coroner's  inquest,  a  burning  disgrace  to  any 
community,  I  care  not  where  it  is.    And  who 
are  the  men  engaged  in  it  ?    If  they  were  men 
:  as  pure  and  lofty  as  the  angels  in  Heaven  ;  men 
1  who  would  congregate  together  and  profane  both 
:  God  and  man  by  their  attempts  to  throw  back 
j  upon  the  pious  old  gentleman,  who  lay  a  corpse 
:  before  them — infamous  charges — would  attempt 
to  ruin  and  prostrate  his  character ;  sir,  they  de- 
serve the  contempt  they  should  receive. 

I  know  not  what  to  say.    What  a  farce!  A 
jury  are  called  together,  twelve  learned  men 
■  sitting  around  a  table.    The  body  is  brought  in 
I  before  them — the  officers  of  the  Government 
being  true  to  their  duty,  present  themselves, 
not  to  swear  to    a  story,  but  to  tell  it.  Not 
:  under  oath,  but  as  a  mere  narrative  of  facts, 
!  and  they  are  excluded.    It  is  sufficient  for  them 
j  to  show  that  the  man  is  dead.  A  noble,  generous, 
high-minded  man.    That  he  is  dead,  and  he 
'  must  be  branded  with  the  imputation  of  going  to 
:  do — what  ?     It  is  that  a  man  clothed  with  the 
authority  of  the  government,  representing  the 
majesty  of  the  government  upon  that  spot,  is  to 
I  have  imputed  to  him  an  act,  which  I  know  if  he 
!  could  speak  now,  he  would  abhor,  to  wit,  "  to  de- 
i  stroy  the  peace  of  an  innocent  family  of  colored 
.  people." 


176 


TREASON  CASES. 


Sir,  it  is  a  base  outrage.  That  Coroner's  In- 
quest shows  exactly  what  the  state  of  feeling  there 
was  And  if  you  are  men  who  can  feel  for  the 
living  and  the  dead,  you  must  regard  it  as  such 
an  outrage. 

But,  sirs,  there  is  another  point,  to  which  I 
shall  direct  your  attention,  and  which  may  be 
viewed  under  this  head  of  discrepancy.  Dr. 
Pierce  is  made  to  owe  his  life  to  the  kindness  of 
the  prisoner  at  the  bar.  This  quiet,  peaceable 
citizen  has  actually  gone  so  far  as  to  peril  his 
own  life  for  the  sake  of  Dr  Pierce. 

He  has  thrown  himself,  a  stranger,  (according 
to  the  theories  of  my  friends,  on  the  other  side) 
a  stranger,  (to  all  the  blacks,  and  therefore,  to 
expect  no  quarter  from  them)  has  actually 
thrown  his  valuable  body,  between  Dr.  Pierce 
and  the  negroes,  and  saved  his  life.  And  we  are 
told  that  we  attempt  to  come  here,  and  plot 
against  him,  when  he  has  been  the  very  instru- 
ment of  preserving  the  man.  Dr.  Pierce  did 
say,  he  was  of  opinion  he  had  saved  his  life  and 
all  the  witnesses  for  the  defence  agree  in  the 
same  proposition. 

But  when  you  scan  the  evidence,  when  it  is 
shown  that  one  hundred  negroes  are  there  as- 
sembled, that  they  are  firing  promiscuously 
down  the  lane,  that  Hanway  is  ahead  of  them, 
and  Dr.  Pierce  is  the  other  side  of  the  horse,  you 
wid  then  perceive  how  he  saved  his  life.  He 
saved  his  life  to  save  his  own.  And,  sirs,  to 
show  you  the  control  which  he  had,  he  raises  his 
hand,  and  they  were  quiet.  He  but  spoke  the 
word,  and  the  firing  ceased  If  they  had  shot 
their  leader,  it  would  have  been  a  bad  thing,  and 
the  soldiers  who  are  paraded  here  in  Court,  (as 
my  learned  friend  chose  to  call  them  the  other 
day)  the  soldiers  could  not  do  without  a  leader, 
and  they  saved  Hanway' s  life,  and  in  doing  that, 
they  saved  Dr.  Pierce's,  and  Dr.  Pierce  owes  to 
Mr.  Hanway  just  so  much  gratitude  as  is  in  pro- 
portion to  the  position  which  Mr.  Hanway,  at 
that  moment,  held  with  reference  to  Dr.  Pierce 
and  life.  But,  gentlemen,  notice  the  scene,  if  I  may 
so  call  it,  Tsrhich  closes  the  evidence  for  the  prose- 
cution. A  poor  u&gre  is  brought  upon  the  stand, 
and  he  swears  directly  contrary  to  what  is  sup- 
posed he  would  have  sworn.  Strange  occurrence, 
it  at  first  seemed,  and  I  was  under  the  impres- 
sion that  it  might  overwhelm  the  case  of  the 
prosecution,  from  the  fact  that  it  had  taken 
place  and  was  not  explained. 

But,  I  thank  heaven  a  night  has  passed,  and 
that  cool,  calm  and  collected  men,  have  had  an 
opportunity  of  thinking  about  that  matter.  A 
man,  who  on  divers  occasions  swore  to  the  men- 
tioning of  certain  facts,  suddenly  changes  his 
whole  story.  But  he  changes  it  methodically. 
Does  he  use  negro  language  on  that  stand,  when 
he  explains  the  simple  story  of  his  former  errors 
and  his  present  innocence  ?  No  !  Levelled  di- 
rectly at  Kline,  because  he  is  the  head  and  front 
of  this  offending.  He  says  in  answer  to  a  question, 
before  he  had  been  interrogated  and  before  we 
had  asked  him  a  single  question.  "I  swore  to 
several  things  at  Lancaster,  but  I  was  scared 
then,  but  now  I  say  I  was  not  there." 

Then  follows  it  up,  "the  man  Kline  or  the  officer 


told  me  that  I,  (the  witness)  was  there,  and  I  was 
frightened,"  What  did  he  do  ?  Whoever  taught 
him  that  story  did  not  think  of  the  results  of  it. 
He  swore  himself  into  the  charge  of  treason.  He 
swore  that  he  was  guilty,  that  he  was  on  the  spot. 
To  do  what  ?  Why,  to  criminate  himself,  and 
unfortunately  for  them,  to  sustain  Kline,  long 
before  the  negro  knew  what  he  was  doing  or  any 
thing  about  it.  If  the  man  was  of  an  unsound 
mind,  he  has  an  extraordinary  way  of  telling  a 
story.  If  he  is  of  sound  mind,  he  shows  far  more 
education  than  his  appearance  indicates.  In  any 
event,  1  am  willing  it  should  weigh  for  nothing. 
I  am  willing  it  should  be  considered  as  nothing, 
and  I  will  also  suggest,  it  protects  Kline,  if  he  has 
to  be  believed,  as  to  the  fact  of  his  being  upon 
the  ground  a  single  man.  Here  was  a  multitude  of 
negroes,  and  Kline  might  have  mistaken  him  for 
some  other,  and  therefore  have  sworn,  or  ne  was 
mistaken.  But  I  should  apprehend  he  was  not 
mistaken  when  he  saw  Hanway  and  read  the  war- 
rants to  him,  and  heard  his  reply  and  saw  his 
actions.  That  fixed  him  in  his  memory.  He  had 
no  conversation  with  Scott,  and  therefore,  may 
also  be  mistaken.  I  will  suggest  a  case  that  has 
occurred  in  regard  to  an  alibi . 
«  In  the  case  of  Dr.  Webster,  of  Boston,  there 
were  a  number  of  witnesses,  who  swore  point 
blank,  that  they  had  seen  him  (Dr.  Park- 
man)  in  the  street.  They  brought  numbers 
of  men  to  swear  to  that  fact,  and  the  reason 
why  they  identified  him,  is  as  remarkable  as 
the  way  that  Mr.  Kline  identified  Harvy  Scott. 
He  was  a  lean  man,  and  they  identified  Dr. 
Parkman  beyond  a  possibility  of  doubt.  I  only 
repeat  this,  to  show  that  even  the  best  proof 
of  alibi  amounts  to  nothing,  and  that  Kline  may 
be  correct :  and  J  also  mention  it,  to  teach  a 
lesson  to  all  who  may  hear  on  this  subject,  to 
show  that  men  never  mistake  more,  than  when 
they  attempt  to  swear  either  one  way,  or  the 
other,  as  regards  an  alibi,  unless  there  is  some 
remarkable  fact  to  swear  to,  or  some  very  striking 
incident  to  go  by. 

I  have  thus  gone  over  many  of  the  prominent 
facts  in  this  evidence.  You  know  that  I  am  to 
be  followed  by  two  colleagues,  who  will  of 
course  glean,  what  I  have  neglected  to  gather, 
aftd  will  comment  upon  what  I  have  not  the 
physical  strength,  nor  the  inclination  to  do. 
But  to  recapitulate.  I  have  first  shown  to  you 
the  transactions  as  they  have  occurred,  in  a 
chronological  order.  As  they  occurred  on  the 
11th  of  September  last. 

That  these  transactions  constituted  the  crime  of 
treason  against  the  law  of  the  land.  I  have  re- 
lated them  with  what  I  consider  to  be  the  evi- 
dence of  the  guilt  of  all  parties.  In  the  next 
place,  I  have  shown  to  you,  that  either  this  man 
Hanway  must  be  innocent  or  guilty.  If  he  is 
innocent,  his  innocence  would  naturally  have 
appeared  by  his  acts,  and  that  if  he  is  guilty, 
which  is  the  most  probable  supposition,  accord- 
ing to  my  mind  and  theory,  that  he  would  have 
acted  precisely  as  he  has  acted.  We  have  heard 
enough  of  the  evidence  of  Lewis,  to  show  that  he 
was  a  witness,  who  would  very  readily  tell  the 
best  story  he  could,  and  that  the  story  he  has 


UNITED  STATES  V.  HANWAY. 


177 


told,  is  inconsistent  with  that  which,  from  the  [  to  me  of  treason,  of  a  few  negroes,  headed  by 
weight  of  the  evidence,  must  have  been  the  facts,  the  prisoner  at  the  bar !  He  was  but  acting 
We  have  next  shown,  that  the  kidnapper's  story,  upon  principles  which  had  been  dictated  to  him 
(upon  which  they  rest,)  was  itself  ridiculed,  and  |  by  men  high  in  authority,  and  who  should  have 
that  in  this  particular  instance,  they  had  notice  j  known  better,  from  their  knowledge  of  the  laws 


that  officers  of  the  government  were  coming,  and 
therefore  that  is  destroyed. 

We  have  next  shown  to  you  that  Kline,  our 
principal  witness,  (who  was  attacked)  has  been 
sustained,  and  that  the  character  of  Hanway,  be- 
ing generally  good  and  peaceable,  has  founded 
the  theory  of  his  innocence  (particularly  I  may 
add  in  this  case)  upon  one  man,  who  comes  here 
and  swears  he  would  not  take  up  arms  in  defence 
of  the  government.  We  have  next  shown  that 
the  discrepancies  of  evidence  amount  to  nothing, 
and  that  they  are  of  no  moment,  when  viewed 
with  reference  to  the  main  points  of  the  testi- 
mony of  Kline  ;  and  that  they  are  of  no  moment 
when  viewed  with  reference  to  the  testimony  of 
Dr.  Pierce,  who  is  corroborated  by  other  testi- 
mony. We  have  next  shown  to  you,  that  from 
the  nature  of  the  country  itself  and  every  thing 
connected  with  it ;  from  the  coroner's  inquest, 
which  I  have  shown  to  bean  outrage  on  humanity, 
we  are  to  expect  men  to  come  here  and  swear  to 
as  much  as  it  is  possible  for  them  to  do. 

And  we  have  commented  somewhat  upon  the 
evidence  of  Harvey  Scott,  and  in  connection  with 
that  I  may  again  add,  that  I 'have  tried  to  explain 
the  reasons  that  he  testified  as  he  did.  I  of  course 
would  not  for  a  moment  pretend  to  charge  my 
learned  friends  upon  the  other  side  with  having 
bribed  him,  and  I  would  not  say  that  there  are 
any  in  the  Court  house  who  would  have  done  it, 
but  I  must  confess,  that  taken  in  connection  with 
the  circumstance  that  two  of  our  witnesses  have 
escaped  from  the  jail  of  this  county,  it  is  not  re- 
markable that  he  should  have  sworn  as  he  did. 

A  good  dinner,  a  tri-colored  scarf,  a  new  suit 
of  clothes,  or  the  almighty  dollar,  might  have 
accomplished  the  result. 

Gentlemen,  how  is  it  that  these  occurrences 
have  taken  place  ?  Who  are  the  men  who  have 
instigated  that  which  has  resulted  in  an  open 
violation  of  the  constitution  and  the  law  ?  It  is 
known  to  every  man  within  my  hearing  that 
this  is  not  an  isolated,  disconnected  instance. 
Bigots,  fanatics,  and  demagogues  have  endea- 
vored to  stimulate  the  populace  to  illegal  and 
monstrous  acts.  The  history  of  the  last  ten 
years  is  full  of  their  conduct,  and  their  opinions, 
and  their  speeches.  They  have  not,  sir,  opposed 
the  total  destruction  of  the  constitution  itself. 
They  have  not  been  intimidated  by  an  attempt  to  i 
hurl  down  this  mighty  edifice. 

They  would  bury  in  oblivion  the  splendid  > 
memories  of  the  past,  and  execrate  the  men  who 
formed  the  constitution  and  the  laws  as  them- 
selves infamous  traitors  to  humanity.  They 
would  bring  upon  this  country  of  ours,  civil  war, 
disunion,  and  all  that  is  horrible.  They  would 
by  their  conduct  destroy  the  lustre  of  humanity. 
They  would  tear  from  amid  the  firmament  of  na- 
tions the  sun  which  has  illumined  them  all.  And 


and  the  constitution.  But,  sir,  when  the  acts 
of  our  forefathers,  when  the  compromises  of  the 
constitution  are  proclaimed  to  be  odious,  it  is  no 
wonder  that  the  humble  citizen  should  be  the 
first  to  feel  the  consequences  of  it. 

Sir,  what  would  we  be,  and  how  would  we  feel, 
if  it  were  announced  to  us  at  this  moment,  that 
this  Union  is  dissolved,  that  this  constitution  is 
a  dead  letter,  that  the  laws  are  annihilated  ? 
You  may  have  grieved  when  you  have  parted 
with  those  you  love,  and  you  may  have  returned 
to  your  dreary,  solitary  homes  and  felt  that 
you  have  sustained  a  loss.  You  may  have  been 
shocked  while  pestilence  and  famine  walked 
abroad,  but  all  this  would  be  absolutely  and 
utterly  nothing  in  comparison  with  what  you 
would  experience,  if  the  interests  and  wishes  of 
these  men  were  to  be  obeyed. 

For  my  own  part,  may  it  please  your  Honors, 
I  would  join  in  those  remarks  which  have  been 
uttered  by  men  high  in  authority.  As  a  citi- 
zen, who  will  sustain  the  laws  to  the  letter,  as  a 
patriot,  devoted  to  the  interest  of  the  country, 
the  constitution  and  the  laws,  I  would  join  sir, 
in  that  desire,  that  if  this  catastrophe  is  to  happen 
I  may  before  that  have  walked  the  valley  of  the  sha- 
dow of  death,  and  found  at  any  rate,  a  grave,  in  my 
native  land. 

The  prisoner,  sir,  when  called  upon  by  the 
clerk  in  answer  to  the  question  :  "  How  will  you 
be  tried  ;"  replied,  "  By  God  and  my  couniry !" 
That  country,  here  represented  by  these  twelve 
jurors,  will,  with  a  deliberation  as  solemn  as  it 
is  pregnant  in  its  consequences  for  good  or  evil, 
determine  the  question.  I  commend  you,  gentle- 
men, from  the  bottom  of  my  heart,  to  the  guid- 
ance of  that  Deity  who  has  overruled  our  destiny. 
If  the  prisoner  be  an  innocent  man,  I  shall  rejoice 
at  his  acquittal ;  but  if  he  be  guilty,  let  him  fall. 

Mr.  Bead.  Mr.  Lewis  was  to  follow  Mr. 
Ludlow,  but  he  is  confined  to  his  bed  ;  he  had  a 
vertigo,  owing  to  some  disorder  in  his  stomach, 
but  1  have  no  doubt,  he  will  be  here  to-morrow 
morning  ;  but  if  not,  I  have  no  right  to  say  a 
word.  I  have  consulted  the  counsel  of  the  Uni- 
ted States,  and  particularly,  the  Attorney  Gene- 
ral of  Maryland,  and  I  am  requested  to  state  to 
the  Court,  that  (owing  to  the  illness  of  Mr. 
Lewis,)  and  to  ask  your  Honors,  to  adjourn  until 
j  to-morrow,  and  it  will  give  the  Attorney  General 
a  further  opportunity  of  preparing  for  his  argu- 
|  ment. 

Mr.  Brent.    I  shall  be  very  much  gratified, 
I  (knowing  that  counsel  on  the  other  side  are  in- 
disposed,) if  the  court  will  adjourn,  but  for  my- 
self, I  ask  no  indulgence. 

Judge  Grier.  I  intend  to  give  the  widest  rule 
to  all  the  counsel  for  their  preparation,  and  we 
will  wait  upon  them  as" long  as  will  be  reasonable ; 
the  only  difficulty  is  that  we  are  trespassing  upon 
sir,  they  would  join  in  the  universal  shout  which  j  the  time  of  the  jury,  who  are  confined,  though  I 
the  tyrants  of  the  world  would  send  up,  as  they  j  believe  not  to  a  very  great  extent.  I  will  farther 
gaze  upon  the  sepulchre  of  the  Republic.    Talk  '  state  that  the  officers  will  let  them  take  exercise 


23 


178 


TREASON  CASES. 


out  of  doors,  but  still  they  are  in  a  state  of  con- 
finement, and  they  may  be  inclined  to  think  that 
we  have  no  right  to  be  liberal  with  their  time, 
however  we  may  be  with  our  own. 

Mr.  Brent.  I  was  about  to  remark,  although 
I  know  that  time  is  very  important  to  the  Court, 
and  confinement  very  disagreeable  to  the  jury, 
still  so  important  is  this  case,  that  every  fair 
opportunity  should  be  offered  for  discussion. 
And  it  being  arranged  that  Mr.  Lewis  was  to 
follow  Mr.  Ludlow.  I  do  not  feel  willing  that 
the  counsel  should  be  precipitated  in  any  argu- 
ment. 

Mr.  Read.  I  parted  with  Mr.  Lewis  last  night 
at  six  o'clock.  I  left  him  very  well,  and  I  was 
not  aware  of  his  indisposition  until  I  came  into 
Court.  I  hope,  however,  that  he  will  be  able  to 
make  his  appearance  in  the  morning. 

Judge  Grier.  As  I  now  despair  of  being  able 
to  attend  the  Supreme  Court  next  week,  though 
I  had  hoped  to  have  got  through  with  my  duties 
in  this  Court,  I  have  no  objections  whatever,  con-  \ 


sidering  the  sudden  attack  of  the  counsel  by 
illness,  to  adjourn  the  Court  until  to-morrow 
morning. 

Judge  Kane.  It  is  the  loss  of  only  a  couple 
of  hours. 

Judge  Grier.  For  that  reason,  we  adjourn 
the  Court  until  to-morrow  morning. 

Judge  Kane.  We  can  arrange  it  perhaps  in 
this  manner — if  we  lose  two  hours  now,  we  can 
add  two  hours  to-morrow — for  Mr.  Lewis  would 
not  at  ail  events  have  been  able  to  close  to-day. 

Mr.  Read.  I  would  not  in  the  slightest 
degree  interfere  with  the  Attorney-General  of 
Maryland,  as  far  as  regards  the  preparation  of 
his  argument. 

Judge  Grier.  It  will  be  understood,  if  Mr. 
Lewis  is  not  well  enough  to-morrow  morning,  we 
can  wait  for  him  no  longer. 

If  the  gentlemen  of  the  jury  do  not  object,  I 
suppose  we  shall  have  to  adjourn,  and  I  can  only 
say,  that  we  will  try  to  make  them  as  comfortable 
!  as  we  can  during  their  confinement. 


UNITED  STATES  V.  HAfTWAY. 


1T9 


him,  and  ever  desolate  without  him,  the  interest 
is  by  many  times  multiplied.  But,  gentlemen  of 
the  jury,  it  is  not  life  only  that  is  here  involved  ; 
the  attack  here  is  not  merely  upon  the  prisoner 
at  the  bar,  but  the  attempt  is  made  to  brand  his 
name  -with  the  infamy  of  treason,  to  place  him 
upon  the  roll  of  those  who,  detested  and  exce- 
The  jurors  were  called  and  answered  to  their I  rated  throughout  time,  have  raised  their  parri- 
imes.  j  cidal  hand  against  their  country.     This  is  no 

Mr.  Lewis  then  commenced  to  sum  up  for  the  slight  matter.  It  is  hard  enough  for  an  innocent 


Philadelphia,  Saturday,  December  Gth,  1851. 

COURT  OPENED  AT  10   A.  ST. 

PRESENT.  JUDGES  GREEK  AND  KANE. 


defence,  as  follows : 


man  to  be  charged  with  a  capital  offence,  still 


Mat  it  please  the  Court, — Gentlemen  of  more  hard  is  it  for  a  man  with  high  patriotic 
the  Jury.  If  any  want  of  zeal  shall  appear  feelings,  to  be  hunted  down  and  hooted  after  as 
manifest  on  my  part,  in  the  course  of  the  remarks  a  traitor,  and  that,  too,  to  a  country  which  he  loves 


which  I  shall  have  the  honor  to  deliver  to  you,  I 
hope  it  will  be  visited  to  the  proper  cause.  When 


so  well. 

Gentlemen  of  the  jury,  this  prosecution  seems 


we  look  at  the  decisions  of  the  courts,  which  !  to  me  to  have  been  commenced  in  a  moment  of 


show  what  the  law  is  in  relation  to  the  charge  of 
treason,  and  when  we  look  at  the  evidence  which 
has  been  given  in  this  case,  it  is  impossible  to 
perceive  any  just  ground  whatever  of  apprehen- 
sion for  either  the  life,  or  even  the  character  of 
the  defendant.  I  cannot,  however,  gentlemen  of 
the  jury,  close  my  eyes  against  the  strong  array, 
which  the  Government  of  the  United  States  has 
here  marshalled  against  it :  to  the  extraordinary 
zeal  which  has  been  manifested  on  the  part  of 
the  six  learned  and  able  counsel  employed  ;  nor 
to  the  indefatiga)  le  efforts  which  have  been  used 
on  their  part  to  make  every  thing  tell  against  him 
that  can  do  so  by  the  most  remote  implication. 
Nor  can  I  close  my  ears  against  that  appeal  that 


excitement,  of  public  phrenzy  ;  for  we  may  say, 
that  such  was  the  condition  of  the  public  feeling 
at  the  time.  Had  a  little  time  been  given,  to 
inquire  what  were  the  facts  and  circumstances 
which  went  to  make  up  the  case :  had  a  little 
time  been  given  to  inquire  who  Castner  Hanway 
was :  I  think  there  could  have  been  no  difficulty 
at  all.  You  never  would  have  been  troubled  with 
this  issue.  Had  passion  been  allowed  to  subside, 
and  had  the  mock  patriot  and  hero  to  whom  this 
prosecution  is  indebted  for  its  origin,  and  whose 
connection  with  the  unfortunate  tragedy  at 
Christiana  gave  unwonted  notoriety  ;  had  he  been 
permitted  to  slide  back  in  the  slime  of  his  filthy 
track,  to  his  condition  of  insignificancy  and  con- 


cries  for  blood  in  the  name  of  patriotism,  and  j  tempt,  you  would  never  have  had  the  duty 
thus  invokes  to  the  aid  of  the  prosecution  one  of  I  which  has  fallen  upon  you  now.  The  whole  pro- 
the  best  feelings  of  the  heart,  for  the  purpose  of  sedition,  gentlemen,  is  founded  upon  a  mistaken 


cutting  off  and  destroying  one  of  the  best  citizens 
of  the  country.  I  trust,  gentlemen,  that  looking 
at  the  facts  as  they  are,  and  at  the  strong  array 
to  which  I  have  referred,  if  I  cannot  find  enough 
to  justify  any  solicitude  on  my  part  as  to  the  re- 
sult of  this  trial,  I  shall  still  find  cause  enough 
for  the  little  effort  that  the  strength  I  have  re- 
maining will  allow  me  to  make. 

This,  gentlemen,  is  an  important  cause.  It  is 
not  necessary  for  me  to  remind  you  of  the  gravity 
of  the  question  involved,  nor  of  the  solemnity  of 
the  occasion  of  the  issue,  which  you  are  severally 
sworn  or  affirmed  to  try.  I  am  sure  there  is  not 
one  amongst  you,  but  what  feels  sufficiently  the  one 
and  appreciates  the  other.  The  life  of  a  human 
being  is  involved  :  that  of  itself  is  an  awful  con- 
sideration. No  one,  however  constituted,  can 
be  altogether  indifferent  to  it,  whatever  may 
be  the  character  of  the  charge,  or  the  nature  of 
the  evidence  by  which  it  is  sustained.  Though 
that  life  may  have  been  dragged  through  years 
of  misery  and  crime,  and  the  hopes  that  were 
once  cherished,  and  the  virtues  that  once  em- 
bellished it,  may  be  extinct  and  gone,  and  though 
the  sentence  of  the  law  should  but  anticipate  by 
a  very  brief  period,  the  doom  which  failing  na- 
ture had  already  pronounced,  still  the  occasion 
is  one  of  interest ;  but  when  that  life  is  of  a 
young  man  of  fine  expectations,  of  hopes  still  in 
their  bloom,  of  refined  sensibilities,  strong  in 
principle  and  pure  in  heart,  of  amiable  temper 
and  kindly  disposition,  peculiarly  fitted  for  the 


idea ;  that  idea  seems  to  be,  that  in  this  town- 
ship of  Sadsbury  there  prevails  an  unwholesome 
and  unpatriotic  spirit,  or  I  should  rather  say 
sentiment,  upon  the  subject  of  the  Fugitive  Slave 
Law,  and  that  Castner  Hanway  is  one  of  those 
who  cherishes  the  bane  of  these  opinions,  and 
that  therefore  he  was  fitted  to  become  a  sacrifice 
to  the  spirit  of  concord.  Now,  gentlemen,  no- 
thing of  this  kind  appears  in  the  evidence  at  all; 
it  supplies  us  with  no  facts  upon  which  such  an 
idea  can  be  based.  The  evidence  leaves  us  here, 
and  the  truth  leaves  us  here ;  without  any 
ground  whatever  for  the  suspicion  that  Mr.  Han- 
way belongs  to  any  sect  or  any  class  which  have 
set  themselves  in  opposition  to  this  law,  or  who 
cherish  opinions  that  are  adverse  to  its  execu- 
tion. On  the  contrary,  he  appears  before  you  as 
a  quiet  humble  citizen,  whose  whole  time  has 
been  devoted  to  the  pursuit  of  his  lawful  occu- 
pation ;  who  has  never  mingled  in  the  tempoary 
excitements  of  the  day,  but  who  has  been  satis- 
fied to  pursue  the  even  tenor  of  his  way  as  an 
humble  citizen,  always  obedient  to  the  laws. 
Under  such  circumstances,  gentlemen  of  the 
jury,  we  should  naturally  have  supposed  that 
this  prosecution,  the  evidence  having  left  him  in 
that  position — altogether  unconnected  with  those 
to  whom  are  attributed  these  unpatriotic  senti- 
ments— we  should  have  supposed  that  the  District 
Attorney  representing  the  United  States  would  at 
once  have  abandoned  it,  and  at  once  have  re- 
lieved you  of  any  unpleasant  duty  on  your  part, 
quiet  enjoyments  of  a  home  ever  happy  with  !  by  saying   that  this  prosecution  has  nothing 


180 


TREASON  CASES. 


whatever  to  sustain  it,  and  therefore  the  defen- 
dant is  entitled  to  his  verdict  of  acquittal. 

But  it  seems,  gentlemen  of  the  jury,  owing  to 
some  peculiarities,  whether  it  be  that  the  State 
of  Maryland  has  some  interests  here  which  are 
not  exactly  presented,  other  counsels  than  those 
have  prevailed,  and  we  have  here,  notwithstand- 
ing this  defendant  stands  before  you  wholly  un- 
tainted and  unstained  by  any  connection  with 
any  people  whatever,  any  sect  or  society,  what- 
ever their  opinion  may  be,  he  is  still  to  be  pro- 
secuted for  this  high  crime  of  treason.  I  say, 
gentlemen,  that  other  counsels  must  have  pre- 
vailed than  those  which  usually  are  found  to  pre- 
vail in  cases  of  this  kind,  under  circumstances  such 
as  these.  Can  it  be  that  the  State  of  Maryland 
has  some  peculiar  object  here  in  view,  something 
to  answer  by  this  prosecution?  Can  it  be  that  it 
is  expected  to  terrify  the  people  of  the  north,  or 
the  people  of  Pennsylvania,  from  looking  on 
whenever  any  attempt  is  made  to  arrest  blacks, 
whether  fleeing  from  slavery,  or  expected  to  be 
fleeing  from  slavery — from  looking  on  to  see  that 
no  freeman  is  taken  away,  that  they  may  have  a 
free  field  to  themselves?  If  this  is  the  object,  it 
is  not  such  as  Pennsylvania  deserves.  Pennsyl- 
vania does  not  deserve  this  treatment.  She  de- 
serves it  neither  by  her  legislation,  nor  by  the 
general  feelings  or  sentiments  of  her  people.  She 
has  always  stood  by  the  compromises  of  the 
constitution,  not  merely  fairly,  but  with  an  in- 
clination favorable  to  the  south. 

Her  legislation  has  here  been  made  the  object  of 
attack;  and  although  foreign  to  the  subject  in 
hand,  it  is  proper  to  say  that  the  attack  is  not 
sustained  by  a  reference  to  the  course  and  char- 
acter of  that  legislation,  but,  on  the  contrary, 
signally  repelled. 

The  first  Act  on  this  subject  is  the  Act  of 
March  1st,  1780,  passed  for  the  general  abolition 
of  slavery  in  the  State.  The  celebrated  pream- 
ble to  the  Act,  written  by  a  distinguished  mem- 
ber of  the  Philadelphia  bar,  Mr.  Bradford,  At- 
torney General  of  Pennsylvania,  expresses  in  elo- 
quent terms  an  abhorrence  of  human  slavery, 
and  the  duty  devolving  upon  our  citizens  as  men 
and  Christians,  to  provide  for  its  extinction.  The 
State  at  that  time  was  independent.  It  was 
bound  by  no  conditions  or  terms  of  compromise. 
There  was  no  Union  to  which  it  owed  fealty.  It 
had  all  the  powers  of  an  irresponsible  sovereign 
within  its  own  jurisdiction.  It  had  a  right  to 
say,  the  moment  a  slave  sets  foot  on  our  soil  that 
moment  he  is  free.  Nay,  without  some  positive 
provision  to  the  contrary,  the  law  would  have 
emancipated  every  fugitive  from  labor  that 
reached  our  soil.  The  State  would  have  been  a 
sanctuary,  not  only  of  political,  but  of  personal 
freedom.  For  slavery  is  an  institution  of  positive 
law,  and  has  no  effect  upon  the  condition  of  a 
human  being  beyond  the  limits  of  its  jurisdiction. 
A  man  by  the  law  of  Maryland  a  slave,  would 
cease  to  be  a  slave  in  Pennsylvania,  unless  some 
positive  law  of  this  state  recognized  his  servile 
condition,  and  he  could  not  be  legally  reclaimed 
or  recovered  here  by  his  Maryland  owner.  Such 
being  the  case  when  Pennsylvania  herself  abol- 
ished slavery  within  her  limits,  in  order  to  ena- 


ble claimants  cf  fugitives  from  labor  in  the  south 
to  reclaim  them,  it  became  necessary  that  some 
legislation  should  be  had  adapted  to  the  purpose. 
And  therefore  it  was,  that  in  the  spirit  of  comity 
for  which  Pennsylvania  has  always  been  distin- 
guished, a  provision  was  made  in  the  law  that 
abolished  slavery,  by  which  fugitives  might  be 
recovered.  Sec.  11  provides,  That  this  Act,  or 
any  thing  in  it  contained,  shall  not  give  any  re- 
lief or  shelter  to  any  absconding  or  runaway 
negro,  or  mulatto  slave,  or  servant,  who  has 
absented  himself,  or  shall  absent  himself,  from 
his  or  her  owner,  master  or  mistress,  residing  in 
any  other  state  or  country,  but  each  owner,  mas- 
ter or  mistress  shall  have  like  right  and  aid  to 
demand,  claim,  or  take  away  his  slave  or  ser- 
vant, as  he  might  have  had  in  case  this  Act  had 
not  been  made. 

By  the  10th  section  of  the  same  act,  slaves 
brought  into  the  State  by  sojourners,  not  becom- 
ing residents  therein,  might  be  held  six  months. 
This  provision  remained  unrepealed  till  1847, 
though  by  the  Act  of  1788,  such  slaves  brought 
in  or  held  by  a  resident  of  the  State,  became  im- 
mediately free  Thus  the  people  of  the  South 
for  about  sixty  years,  were  allowed  a  privilege 
upon  our  soil  which  was  denied  to  our  own 
citizens. 

The  constitution  of  the  United  States  having 
been  adopted,  the  law  of  Congress  of  1793  was 
passed,  giving  to  aldermen  and  justices  of  the 
peace  of  the  several  States,  authority  to  decide 
on  the  claims  of  persons  residing  in  any  part  of 
the  Union,  to  the  persons  or  services  of  alleged 
fugitives  from  labor,  and  to  grant  certificates 
for  their  removal.  That  such  ample  and  irre- 
sponsible power,  lodged  in  many  hands,  should 
lead  to  great  abuses,  might  have  been  anticipated. 
Officers  whose  jurisdiction  was  limited  by  the 
law  of  the  state,  to  questions  of  property  not  ex- 
ceeding one  hundred  dollars,  and  whose  judg- 
ments were  final  only  when  the  amount  in  dis- 
pute was  under  forty  shillings,  could  not  be 
generally  fitted  to  decide  on  the  liberty  of  human 
beings — and  it  was  easy  to  find  those  holding  so 
subordinate  an  office,  who  were  willing,  for  the 
sake  of  the  money  to  be  made  by  it,  to  furnish 
facilities  to  the  kidnapper.  That  great  abuses 
were  practised  under  this  act,  rests  npon  un- 
questionable authority.  The  j  udiciary  committee 
of  the  House  of  Representatives  of  the  State,  of 
1820,  declare  that  many  were  sent  into  slavery 
by  means  of  certificates  improperly  given,  who 
were  undoubtedly  free.  It  was  to  prevent  these 
abuses  and  to  secure  to  alleged  fugitives  an  open 
examination  of  the  claims,  before  a  respectable 
tribunal,  that  the  act  of  the  27th  of  March,  1820 
was  passed.  To  this  act  some  amendment  was 
desired  by  the  legislature  of  Maryland,  Avho  in 
the  year  1826,  sent  a  deputation  to  the  legisla- 
ture of  this  State.  This  deputation  was  treated 
with  the  utmost  civility,  they  had  seats  furnished 
them  on  the  floor  of  the  house,  and  their  repre- 
sentations listened  to  with  the  utmost  respect. 
The  result  was  the  law  of  March,  1826,  by  which 
it  was  made  the  duty  of  the  judges  of  the  county 
courts,  to  hear  and  adjudicate  the  claims  of 
1  owners  of  fugitives  slaves.    Provision  was  made 


UNITED  STATES  V.  HANWAY. 


181 


for  securing  to  the  alleged  fugitive  an  impartial 
hearing,  and  a  penalty  was  prescribed  for  kid- 
napping those  who  were  entitled  to  their  free- 
dom. Aldermen  and  justices  of  the  peace  were 
prohibited  from  exercising  the  functions  assigned 
them  by  the  act  of  1793,  and  this  was  evidently 
done,  because  of  the  abuses  practised  under  it, 
which  had  reached  a  pitch  that  rendered  them 
intolerable.  The  prohibition  parts  of  the  law  of 
1826,  were  not  to  prevent  the  recovery  of  fugi- 
tive slaves,  but  to  prevent  free  persons  from 
being  carried  into  slavery  under  the  law. 

In  1832,  Margaret  Morgan,  a  slave  for  life, 
escaped  from  Maryland  into  Pennsylvania,  and 
while  there,  gave  birth  to  two  children,  one  of 
whom  was  born  more  than  a  year  after  her  es- 
cape from  Maryland.  Edward  Prigg,  a  citizen 
of  Maryland,  acting  in  behalf  of  the  mistress  of 
Margaret  Morgan,  carried  her  and  her  children 
into  Maryland  without  any  legal  authority.  For 
this  act,  undoubtedly,  as  far  as  the  children  were 
concerned,  a  case  of  kidnapping,  Prigg  was  in- 
dicted. The  state  of  Maryland  undertook  his 
defence,  and  a  special  verdict  having  been  found 
at  the  request  of  the  counsel  of  the  state  of 
Maryland,  the  case  was  eventually  removed  to 
the  Supreme  Court  of  the  United  States,  to  test 
the  constitutionality  of  the  law  of  1826.  That 
court,  at  the  January  term,  18-42,  decided  the 
law  to  be  unconstitutional,  and  that  the  whole 
right  and  duty  of  providing  the  means  for  giving 
effect  to  the  provision  of  the  constitution  relative 
to  fugitives  from  labor,  belonged  exclusively  to 
the  Congress  of  the  United  States.  An  attempt, 
therefore,  on  the  part  of  any  State  to  legislate 
upon  the  subject,  was  an  invasion  of  the  federal 
authority,  and  of  course  void.  Obedient  to  this 
decision,  the  act  of  1847  was  passed,  repealing 
all  the  provisions  of  the  act  of  1826,  to  which  the 
constitutional  objection  applied,  denied  the  use 
of  the  state  prisons  to  claimants  to  fugitives, 
and  left  the  whole  subject  where  the  Supreme 
Court  left  it,  and  where  it  properly  belonged, 
to  the  action  of  the  Congress  of  the  United 
States. 

It  appears,  therefore,  that  the  legislature  of 
Pennsylvania,  instead  of  interposing  obstructions 
to  the  reclamation  of  absconding  slaves  has  ac- 
tually afforded  facilities,  by  giving  jurisdiction 
to  her  State  officers  for  that  purpose,  till  informed 
by  the  Supreme  Court  that  she  had  no  jurisdiction 
of  the  subject.  She  then,  respectfully  obedient 
to  the  judgment  of  the  court,  having  the  au- 
thority to  decide  upon  the  validity  of  her  acts, 
yields  the  whole  business  of  legislating  on  the 
subject  of  fugitives  from  labor,  to  the  power 
that  has  constitutionally  cognizance  of  it.  What 
is  in  this  of  which  Maryland  has  to  complain  ? 
And  why  are  we  to  be  told  here  that  Pennsylva- 
nia has  obstructed  by  her  legislation  the  recovery 
of  fugitive  slaves  ? 

The  truth  is.  the  object  of  Pennsylvania's 
legislation  has  been  uniformly  twofold — first,  to 
provide  a  means  for  the  recovery  of  fugitives 
within  her  borders,  and  to  protect  her  own  free 
black  population.  The  first  she  was  not  bound 
to  do — the  last  she  was  bound  to  do.  The  first 
yhe  did  from  comity — the  last  from  duty.    It  is 


painful  to  see  that  this  comity  has  never  been 
appreciated,  and  no  credit  ever  given  for  it. 

Has  Maryland  reciprocated  this  kindly  dispo- 
sition towards  the  south,  ever  manifested"  by  us  ? 
Has  she  not,  on  the  contrary,  treated  the  free 
black  subjects  of  Pennsylvania,  which  Pennsyl- 
vania is  as  much  bound  to  protect  as  her  proudest 
citizen,  with  habitual  harshness  and  severity. 
Are  the  rights  of  such  subjects  entering  Maryland 
respected  ?  On  the  contrary,  let  me  ask  the 
learned  Attorney  General  of  that  State,  if  they 
are  not,  or  were  not  recently  liable,  if  found 
travelling  within  her  jurisdiction,  to  be  im- 
prisoned, and  if  they  could  not  in  due  time  prove 
their  freedom,  to  be  sold  for  their  jail  fees  ? 

Pennsylvania,  as  I  have  shown,  does  not  de- 
serve to  be  charged  with  unkindness  towards  her 
sisters  of  the  Union,  or  with  laboring  to  obstruct 
the  South  in  the  reclamation  of  fugitive  slaves. 
Nor  does  she  deserve  that  her  citizens  shall  be 
dragged  from  their  homes,  imprisoned  for  months, 
and  tried  for  their  lives  in  the  United  States 
courts,  on  fictitious  charges,  as  examples  to  ter- 
rify others. 

It  ought  always  to  be  remembered,  that  this 
business  of  hunting  down  fugitives,  is  the  busi- 
ness of  the  persons  from  whom  they  escape,  pe- 
culiarly, and  that  we  really  have  nothing  to  do 
with  it.  We  have  no  interest  in  it — and  if  the 
scenes  to  which  such  man  and  woman  hunting 
give  rise,  are  revolting  to  the  sensibilities  of  our 
people,  it  is  too  much  to  expect  them  to  assist, 
and  they  cannot  and  will  not  be  frightened  into 
it  by  prosecutions  for  treason. 

You  may  irritate  and  exasperate  public  feeling, 
but  you  cannot  make  active  slave  catchers  of  any 
respectable  men  in  Pennsylvania,  even  by  threats 
of  the  gallows. 

If,  therefore,  the  object  of  this  prosecution  is 
to  drive  our  people  into  an  active  pursuit  of  such 
slaves  as  may  happen  to  come  into  our  State,  it 
must  fail.  It  cannot  and  ought  not  to  succeed 
in  the  accomplishment  of  any  such  object.  They 
will  not  chase  frightened  men  and  women,  though 
they  be  black,  from  wood  to  wood,  and  from  hill 
to  hill,  with  fire  arms  and  bludgeons,  to  the 
great  alarm  of  peaceful  neighborhoods,  and  the 
scandal  of  human  society. 

If  the  object  is  to  obtain  for  the  gentlemen  of 
south,  free  scope  to  hunt  down  their  own  negroes 
when  they  escape  from  thraldom  into  our  terri- 
tory, it  was  unnecessary.  That  they  have  al- 
ready. The  constitution  and  the  laws  of  the 
j  Union  give  them  that,  and  with  that  they  ought 
to  be  satisfied.  As  long  as  they  do  no  more  our 
|  citizens  will  not  and  do  not  interfere.  What  the 
laws  of  the 'southern  states  have  made  property, 
is  property  here  by  the  constitution,  and  may  be 
reclaimed. 

But  while  Pennsylvanians  permit  the  south  to 
pursue  raid  recapture  their  own  slaves  in  our 
territory,  however  much  such  man  hunts  may 
be  disagreeable  to  us,  without  opposition,  we 
still  must  be  allowed  to  take  care  that  free  per- 
!  sons  are  not  carried  off  by  mistake,  or  under 
pretence  of  right.  The  south  claims  and  enjoys 
the  right  of  recapture,  not  of  kidnapping,  and 
while  we  yield  with  implicit  submission,  to  the 


182 


TREASON  CASES. 


exercise  of  the  right,  we  must  not  permit  the 
wrong,  whensoever  or  howsoever  it  may  be  at- 
tempted. 

This  is  then  the  position  our  population  as- 
sumes. It  is  a  position  from  which  they  are  not 
to  be  driven.  You  may  crowd  your  prisons  with 
men  and  women,  and  you  may  darken  the  land 
with  gibbets,  you  cannot  compel  them  to  sur- 
render the  rights  of  humanity  or  to  abandon  the 
duties  of  Christian  benevolence. 

The  evidence  places  our  client  in  this  position. 
Belonging  to  no  party,  or  clique,  or  coterie,  so  far 
as  we  know,  having  no  strong  opinions  or  feelings 
upon  any  of  the  agitating  topics  of  the  day  ; 
content  to  follow  his  humble  calling  in  the  quiet 
way,  best  suited  to  his  temper  and  character  ;  he 
claims  to  occupy  the  same  ground  as  any  other 
citizen  of  Pennsylvania,  and  does  in  truth,  and  in 
your  view  of  this  testimony  occupy  that  ground, 
and  no  other. 

As  a  citizen  of  Pennsylvania,  while  claiming 
no  right  to  interfere  with  slaves,  he  claims  the 
right  to  step  forward  on  all  occasions  when  in- 
jury is  menaced,  to  avert  it  if  he  can. 

This  is  what  he  intended  to  do,  and  this  is 
"what  he  has  done,  and  no  more.  The  intent — 
the  quo  animo — is  always  in  cases  of  treason,  a 
necessary  inquiry  ;  and  that  intent  is  written  in 
broad  characters  on  the  face  of  this  whole  trans- 
action. It  was  innocent,  and  not  only  innocent 
but  praiseworthy. 

Before  speaking  particularly  of  the  circum- 
stances constituting  the  tragedy  of  the  eleventh 
of  September,  permit  me  here  to  remark  that  no 
man  regrets  the  lamentable  events  of  that  day 
more  than  Castner  Han  way.  We  are  here 
neither  to  justify,  excuse,  or  palliate  it.  In  the 
conduct  of  this  cause,  under  the  instructions  of 
our  client,  we  have  shown  that  the  relatives  of 
the  unfortunate  man,  who  lost  his  life  in  that 
bloody  affray,  have  in  Mr.  Hanway  a  sincere  sym- 
pathizer. We  have,  I  trust,  shown  due  respect, 
not  only  to  the  memory  of  the  dead,  but  to  the 
feelings  of  the  living.  They  have  been  permitted 
to  give  their  narratives  as  witnesses,  in  their 
own  way.  Not  a  question  was  asked  of  either  of 
the  Messrs.  Glorsuchs'  in  cross-examination. 

In  order  to  understand  the  occurrences  of  the 
eleventh,  it  is  necessary  to  refer  to  some  facts 
which  had  happened  previously.  In  the  early 
part  of  this  year,  the  house  of  Mr.  Chamberlain, 
wbo  resided  in  the  immediate  neighborhood,  had 
been  ruthlessly  entered  under  cover  of  the  night ; 
his  family  agitated  and  alarmed ;  his  wife  almost 
fatally  injured  by  the  nervous  shock  given  to  her 
system,  and  his  hired  negro  knocked  down  and 
dragged,  bruised  and  bleeding,  and  carried  away 
doubtless  into  slavery.  No  process  was  shown 
or  pretended.  A  noted  miscreant  of  the  neigh- 
borhood, accompanied  this  band  of  kidnappers. 
And  this  was  not  the  only  instance.  One  of  a 
similar  character  had  occurred,  according  to  the 
testimony  of  Mr.  Pennington,  but  a  short  time 
previous.  Such  doings  in  a  peaceful  neighbor- 
hood, were  well  calculated  to  create  alarm.  They 
did  create  alarm  among  both  blacks  and  whites, 
and  a  feeling  of  insecurity  generally  prevailed. 

While  this  feeling  existed,  Kline,  after  having 


spent  a  day  and  two  nights  in  the  neighborhood* 
hanging  about  the  taverns,  and  exhibiting  himself 
abroad  at  unusual  hours,  made  his  descent  upon 
the  family  of  Parker,  under  cover  of  the  night, 
with  a  company  of  seven  persons  armed  with  re- 
volvers. The  whole  proceeding  had  a  kidnapping 
odor  about  it.  The  persons  that  saw  the  com- 
pany of  armed  men  surrounding  this  house  of  a 
negro  supposed  to  be  free,  and  held  at  bay  by 
those  within,  might  well  suspect  them  to  be  kid- 
nappers. Such  a  suspicion  was  natural  and 
reasonable,  especially  so  in  the  peaceful  neighbor- 
hood of  Sadsbury,  where  any  civil  process  can  be 
served  by  any  civil  officer  without  arms,  and 
where  the  exhibition  of  deadly  weapons  for  any 
lawful  pupose  is  wholly  useless  and  out  of  place. 
Marshal  Roberts  might  and  would  have  appre- 
hended all  the  fugitives  named  in  Kline's  war- 
rants without  a  single  revolver.  The  alarm  was 
spread  ;  it  reached  Elijah  Lewis.  Kidnappers 
he  was  informed  had  surrounded  Parker's  house. 
What  then  did  it  become  him  as  a  man  of  human- 
ity and  a  citizen  of  a  free  State,  whose  black 
subjects  it  is  necessary  to  protect,  to  do?  To 
remain  at  home,  and  allow  the  supposed  kidnap- 
pers to  work  their  will  ?  Suppose  those  men  had 
proved  to  be  kidnappers,  and  they  had  carried  off 
a  colored  family  from  the  neighborhood,  would  it 
not  have  been  a  lasting  reproach  to  Sadsbury  and 
to  every  man  in  it ;  and  could  Elijah  Lewis  have 
justified  himself  to  the  people,  or  to  himself,  in 
declining  to  step  forth  and  arrest  the  attempt  to 
commit  what  seemed  to  be  a  bold  outrage  upon 
the  peace  of  the  community.  Certainly  he  was 
in  the  line  of  his  duty  when  he  proposed  tu  him- 
self to  go  at  once  to  the  Spot  where  the  supposed 
kidnappers  were  assembled,  and  to  ascertain 
whether  the  suspicion  was  correct,  or  whether 
there  was  lawful  authority  for  the  proceeding. 
If  it  was  proper  in  Lewis  to  go  to  Parker's  on 
such  an  errand,  it  was  proper  for  Hanway  to  go 
on  the  same  errand.  That  he  did  go  on  that 
errand  and  on  no  other,  is  abundantly  manifest. 
It  is  proved,  not  only  by  Elijah  Lewis,  but  by 
John  Burt.  That  they  went  with  no  other  object 
is  almost  certain  from  the  fact  that  no  other  per- 
son was  called  upon  by  either  of  those  gentlemen 
who,  if  there  had  been  any  concert  or  combina- 
tion among  the  whites  of  the  neighborhood,  would 
not  have  been  the  only  persons  that  would  have 
been  summoned  on  such  an  occasion.  Besides, 
everything  that  was  done  after  their- arrival  on 
the  ground,  was  consistent  with  the  object  avowed. 
Mr.  Lewis  demanded  to  see  the  warrants,  they  were 
shown  him  ;  and  without  speaking  to  a  soul  on 
the  ground  besides  Hanway  and  Kline;  he  retired. 
Hanway  also  retired  to  some  distance,  but  seems 
to  have  stopped,  and  sat  on  his  horse  near  the 
creek,  observing  the  proceedings,  and  no  doubt, 
with  a  feeling  of.  anxiety  lest  something  unfortu- 
nate should  happen. 

We  therefore  assume  it  as  proved,  if  evidence 
of  intent  can  be  proved  by  the  evidence  of  acts, 
that  the  intentions  of  Hanway  were  praiseworthy 
and  humane. 

If  you  coincide  with  me  that  Lewis  and  Han- 
way came  to  the  ground  with  a  just  and  humane 
intent,  the  question  may  be  asked,  did  they  coa- 


UNITED  STATES  V.  HAWAT. 


183 


bine  after  they  came  with  the  negroes  to  do  any  nied.  Even  if  he  did  prove  a  combination — even 
unlawful  act.  If  they  were  disposed  to  dissolve  if  stooping  from  his  saddle  and  speaking  to  the 
the  Union,  or  to  overthrow  the  government  in  blacks,  without  our  knowing  what  he  said,  was 
sympathy  with  some  southern  agitators,  the  pre-  proof  of  combination  and  guilty  concert,  it  would 
sence  of  the  negro  force  prepared  for  war  with  not  suffice.  That  combination  and  concert  must, 
such  extempore  weapons  as  shot  guns,  clubs,  and  in  treason,  be  proved  by  two  witnesses.  Other- 
corn-cutters,  and  exhibiting  much  of  the  ragged  wise  you  might  by  proving  overt  acts  of  violence 
valor  proper  to  such  an  achievement,  afforded,  done  by  others,  and  then  combination  and  con- 
doubtless,  a  convenient  and  tempting  opportunity,  cert  with  the  perpetrators  of  such  acts  by  a 
The  country  from  the  Atlantic  to  the  Pacific  is  single  witness,  make  out  your  whole  case  against 
only  three  thousand  miles,  and  from  the  St.  Law-  the  defendant,  without  complying  with  the  re- 
rence  to  the  Rio  Grande  scarcely  more  than  two  quisitions  of  the  statute.  I  take  it  that  "where 
thousand,  and  the  number  of  square  miles  not  the  guilt  of  the  accused  depends  altogether  upon 
more  than  six  millions,  andif  Mr.  Ingraham'shead  the  fact  of  his  connection  with  others,  that  con- 
officer  of  a  detachment  of  s^x  could  only  be  over-  nection  must  be  proved  by  two  witnesses, 
come,  would  not  the  rebellion  so  auspiciously  begun  :  In  high  criminal  offences,  the  proof  of  guilt 
in  a  narrow  lane  between  Mr.  PownelFs  orchard  '  must  rebut  every  reasonable  inference  in  favor 
and  corn-field,  extend  at  least  to  the  orchard  and  of  innocence.  This  is  a  settled  established  prin- 
corn-field  themselves,  if  not  to  the  whole  Union,  j  ciple  of  penal  law.  Here,  however,  we  have  no 
and  thus  make  a  grand  stroke  in  the  work  of  re-  ;  need  to  invoke  its  aid.  For  the  proof  of  Han- 
volution.  But  these  seem  to  be  unambitious  men,  !  way's  innocence  of  this  charge,  rebuts  the  theory 
and  not  disposed  to  yield  to  the  temptation.  I  of  guilt.  For  Elijah  Lewis,  if  you  believe  him, 
There  is  no  evidence  to  show  that  they  combined,  i  and  his  character  is  wholly  unimpeached,  not 
I  will  not  say  to  commit  treason,  for  no  treason  only  accounts  for  Mr.  Hanway's  presence,  but 
has  been  committed  by  any  one,  but  for  any  pur-  |  also  shows  that  when  the  humane  purpose  of 
pose,  with  the  blacks  on  the  ground.  No  one  in-  i  that  presence  was  answered,  he  withdrew  from 
sinuates  such  a  thing  but  Kline,  and  he  doss  not  j  the  ground  to  a  sufficient  distance,  to  be  beyond 
make  it  out.  He  says  no  more  than  that  Han-  j  all  just  suspicion  of  participation  with  the  per- 
way  rode  over  to  the  negroes,  stooped  down  and  petrators  of  the  outrage,  which  might  then  have 
said  something  in  a  low  voice, — being  deaf,  how  j  been  apprehended,  but  which  would  not  in  all 
did  he  happen  to  hear  a  low  voice, — and  then  |  probability  have  occurred,  but  for  the  slinking 
rode  off  some  twenty  or  thirty  paces,  when  the  cowardice  of  Kline.  Burt  and  Loughead,  and 
negroes  gave  one  shout,  rushed  down  the  lane,  \  even  Hutchings  and  Nelson,  all  support  Mr. 
and  fired.  Now,  taking  this  as  true,  and  it  is  j  Lewis,  in  every  point,  upon  which  they  are 
proved  not  to  be,  what  does  it  amount  to  ?  What  brought  together — there  is  no  contradiction  to 
is  its  weight  and  value  as  evidence  of  guilty  con-  it  by  any  one  witness,  except  Kline,  and  it  is 
cert  ?  If  the  words  were  known  they  would  ex-  besides  consistent  in  every  way  with  probability, 
plain  themselves,  but  unknown,  the  presumption  j  Throw  Kline  out,  and  there  is  not  a  word  in 
is,  that  they  were  not  words  of  incitement.  If  the  testimony  of  any  one  witness,  to  inculpate  the 
the  United  States  alleges  that  the  words  were  not  prisoner  in  a  single  impropriety,  in  word  or  act. 
innocent,  that  allegation  must  be  sustained.  We  And  ought  he  not  to  be  thrown  out  ?  To  his 
are  not  at  liberty  to  infer  it.  The  law  does  not  cowardice  is  owing  this  whole  tragedy.  Had  he 
allow  such  inferences.  Till  the  proof  of  their  ;  kept  his  force  together,  and  withdrawn  them  in 
nature  and  character  is  furnished,  the  presump-  j  a  body  from  the  ground,  there  is  no  probability 
tion  stands  in  place  of  proof,  and  is  sufficient  for  j  of  their  being  assailed.  After  three  of  the  seven, 
all  the  purposes  of  the  defence.  :  who  constituted  the  force  that  went  to  execute 

The  sounding  of  horns  in  the  house  of  Parker  the  warrants,  had  retired,  the  danger  was  greatly 
and  in  the  neighborhood  brings  no  aid  to  the  1  increased,  and  yet  it  appears,  that  even  then,  if 
averment  of  combination,  nor  indeed  to  any  I  it  had  not  been  that  Mr.  Gorsuch  after  retreat- 
other.  The  horn  heard  near  the  railroad  is  fully  '  ing  some  sixty  yards  from  the  house,  had  not 
accounted  for,  as  being  blown  every  morning  to  attempted  to  return  to  make  the  intended  arrest, 
call  the  Irish  laborers  on  the  road  together  to  nothing  serious  could  have  happened.  It  was 
their  work.  One  other  horn,  not  more,  was  heard  ;  that  attempt  that  exasperated  the  negroes,  and 
and  that  other  certainly  not  earlier  than  the  i  brought  about  the  conflict.  After  the  fight  was 
usual  breakfast  hour.  Now,  although  in  clue  re-  '  over,  it  was  not  difficult  even  for  Kline's  intelli- 
spect  to  Southern  gentlemen,  when  on  a  foray  ;  gence  to  perceive  that  a  heavy  responsibility 
after  negroes,  it  may  be  well  to  "let  no  dog  rested  somewhere,  and  it  was  very  natural  for 
bark,"  it  is  a  little  too  much  to  ask  that  no  labor-  :  him  to  endeavor  to  shift  it  from  his  own  shoul- 
ing  man  should  have  his  breakfast.  Besides,  it  ders,  where  every  one  would  be  disposed  to  place 
is  to  be  observed,  that  if  a  horn  blown  at  the  j  it,  and  throw  it  any  where  else  The  excitement 
house  invested  was  to  give  notice  that  something  i  that  ensued  prevented  strict  inquiry.  Kline, 
was  wrong  there,  and  that  assistance  was  wanted  j  told  his  own  story,  and  made  himself  the  hero  of 
at  that  place,  to  have  blown  other  horns  would  I  the  affray.  His  first  story  threw  the  blame 
have  been  to  direct  attention  to  other  points,  and  upon  the  rashness  of  the  Maryland  party,  and  it 
thus  defeat  the  very  object  had  in  view.  !  was  not  till  after  one  night  or  more,  during 

Kline  therefore,  does  not  make  out  a  case  of  which  he  had  time  to  invent,  as  well  as  to  corn- 
combination  for  any  purpose.  The  most  that  he  pose  himself,  he  began  to  accuse  the  two  white 
proves  is  a  refusal  to  assist,  and  that  is  not  de-  |  men  he  met  at  the  month  of  the  lane.  Cowards  are 


TREASON  CASES. 


always  liars,  and  it  is  only  needed  to  find  in 
the  transaction,  a  sufficient  motive  to  misrepre- 
sent, and  the  misrepresentation  will  follow  of 
course. 

In  order  to  rid  himself  of  blame,  and  to  incul- 
pate others,  it  was  necessary  for  him  to  induce 
the  belief  that  he  was  nearer  the  place  of  the 
outrage  than  he  actually  was,  and  that  Lewis 
and  Hanway,  were  both  present.  The  story  he 
first  told  was  then  varied  to  suit  this  necessity, 
and  to  that  story  he  has  here  sworn.  Now  that 
story  is  not  true.  He  was  in  the  woods  when 
the  firing  began,  full  one  hundred  yards  from  the 
scene  of  action.  Dr.  Pierce  shows  that  he  was 
absent  for  a  longer  time  from  the  end  of  the  lane 
than  Kline  is  willing  to  acknowledge,  prior  to  the 
affray,  and  was  not  to  be  seen  or  within  hearing. 
Dickenson  Gorsuch  contradicts  him,  for  he  speaks 
of  meeting  him  first,  after  he  escaped  from  the 
end  of  the  long  lane.  Hutchings,  who  must  have 
seen  him,  if  he  led  the  wounded  man  along  the 
lane  and  into  the  woods,  saw  him  noAvhere  after 
the  firing,  but  in  the  woods.  Nelson,  who  was 
in  the  woods  at  that  same  critical  point  of  time, 
saw  him  there,  and  nowhere  else.  John  Nott 
fully  contradicts  him,  by  showing  that  he  was 
with  Dickinson  Gorsuch  on  the  south,  and  not 
on  the  north  side  of  the  Penningtonville  road. 
Loughead  saw  him,  when  he  first  met  Mr.  Gor- 
such wounded  in  the  middle  of  the  road;  and 
Elijah  Lewis  proves,  that  he  could  not  possibly 
have  been  in  the  corn-field,  but  must  have  been 
in  the  woods,  from  the  time  he  followed  him  out 
of  the  long  lane,  and  that  he  could  not  have 
returned.  Kline  is  confident  as  to  Harvey 
Scott's  presence.  This  he  affirms  with  more 
positiveness  than  any  other  fact.  He  doubtless 
supposed,  that  Scott  would  sustain  this  asser- 
tion. And  Scott,  who  if  he  had  been  present, 
and,  who  in  all  fairness,  if  believed  to  be  present 
by  the  government,  ought  to  have  been  produced 
as  a  witness-in-chief,  is  withheld  till  it  becomes 
important  to  sustain  Kline  ;  and  is  then  produced 
to  answer  a  single  question — whether  he  was 
present  at  the  riot.  To  the  astonishment  and 
confusion  of  the  prosecution,  he  answers  that  he 
was  not.  He  adds,  that  when  he  testified  before, 
he  was  frightened,  and  being  told  he  was  pre- 
sent, thought  he  might  as  well  say  so.  I  am 
glad  to  see  that  some  small  remains  of  con- 
science, or  some  just  awe  of  the  presence  in 
which  he  stood,  or  the  influence  of  later  and 
better  thoughts  prevailed,  to  wring  from  him  the 
truth  at  last.  We  have  proved  it  to  be  the  truth 
by  three  unimpeachable  witnesses,  and  by  a 
paper  whose  date  proves  the  impossibility  of 
mistake  as  to  the  day.  Yet  after  all  this,  it  was 
strenuously  argued  here  yesterday,  by  the  learn- 
ed gentleman  who  summed  up  for  the  United 
States,  as  the  argument  was  reported  to  me,  for 
I  was  too  iinwell  to  come  into  court,  that  his 
oath  here,  the  oath  of  their  own  witness,  whom  we 
have  never  seen  except  on  the  witness  stand, 
whom  the  prosecution  have  nursed  and  kept  at  a 
dollar  and  a  quarter  a  day  for  eighty  days,  to 
swear  for  them  on  this  trial,  whom  the  United 
States  counsel  have,  as  here  avowed  in  open 
court,  visited  and  conversed  with  in  prison,  whom 


we  have  always  considered  as  too  degraded  and 
polluted  for  contact,  and  prepared  ourselves  to 
meet,  refute,  contradict  and  overwhelm,  at  every 
point ;  it  has  been,  I  say,  solemnly  and  strenu- 
ously argued  that  Harvey  Scott  has  been  seduced 
to  perjure  himself,  by  person  or  persons  con- 
nected with  this  defence.  For  the  estimable  and 
able  gentleman  who  made  this  argument  I  have 
the  highest  respect,  and  I  cannot  attribute  to 
him  any  thing,  that  is  not  proper  to  the  con- 
du3t  and  character  of  a  man  of  great  moral 
worth,  and  high  professional  standing,  and  most 
especially  do  I  absolve  him  from  the  invention 
of  a  calumny  so  atrocious  and  unwarranted,  even 
by  any  circumstance  of  suspicion  ;  but  I  cannot 
help,  I  am  bound  by  truth  and  duty  to  say  here, 
and  I  do  say,  that  the  imputation  is  a  slander, 
villainous  and  atrocious  to  the  last  degree,  and  I 
stamp  it  with  its  true  character,  and  spit  upon  it 
and  trample  it  beneath  my  feet.  The  upshot  is, 
Harvey  Scott  is  brought  to  support  Kline,  but 
fails  to  do  it.  After  this  it  was  not  necessary  to 
produce  evidence  to  Kline's  character  for  truth. 
Unsupported  by  any  witness  as  to  the  points  in 
controversy,  and  contradicted  by  those  that 
should  have  upheld  him,  he  falls  of  course.  It 
was  not  necessary  under  such  circumstances  to 
exhibit  evidence  for  his  further  discomfiture. 
Still,  you  have  had  before  you,  a  train  of  twenty- 
three  witnesses,  headed  by  that  eminent  jurist, 
and  highly  esteemed  citizen,  the  Hon.  William 
D.  Kelley,  who  have  told  you  that  Kline's  cha- 
racter for  truth  is  bad.  It  is  true,  Kline  has 
succeeded  in  producing  a  much  larger  number 
of  witnesses,  who  give  an  opposite  view ;  you 
have  both  the  witnesses  to  that  character,  and 
their  testimony  before  you,  and  can  judge  of 
them. 

Kline  has  been  supposed  to  derive  some  sup- 
port from  the  fact  insinuated,  but  not  distinctly 
averred,  that  the  negroes  in  the  house  appeared 
to  be  inspired  with  fresh  courage  on  the  appear- 
ance of  Hanway  near  the  bars.  But  the  force 
of  this  suggestion  disappears  the  moment  we 
look  at  the  evidence.  Dickinson  Gorsuch  was 
questioned  on  this  subject.  He  said  that  the 
negroes  seemed  inspired  after  Hanway  rode  up. 
He  was  then  asked  how  long  after?  He  answered, 
"  Not  long." 

Mr.  Brent  read  the  next  sentence.  (Reads.) 
Yes,  there  is  a  long  interrogatory  in  a  leading 
form,  embracing  among  other  things  a  question, 
whether  it  was  not  a  short  time  after  Hanway 
rode  up,  and  that  not  the  last  question  in  that 
long  sentence ;  and  to  the  whole  he  answers 
"Yes."  Whether  to  the  last  member  of  the 
interrogatory  sentence  or  all  together,  it  is  im- 
possible to  tell.  But  it  matters  not.  "  Shortly," 
is  no  definite  measure  of  time,  and  the  answer 
does  not  add  to  our  information.  It  otherwise 
appears,  that  just  after  Hanway  arrived,  a  num- 
ber of  blacks  appeared  on  the  ground.  Theso 
are  stated  by  Dickinson  Gorsuch  to  have  come 
trooping  from  all  quarters.  The  blacks  must 
have  seen  them,  and  it  is  not  certain  they  saw 
Mr.  Hanway ;  and  they  must  have  seen  them, 
(being  in  a  more  commanding  position  than  the 
persons  around  the  house,)  at  some  distance  off, 


UNITED  STATES  V.  HANWAY. 


185 


as  they  approached.  Can  it  be  doubted,  that 
this  aid  which  they  most  desired,  being  that  of 
men  whom  they  were  certain  of  being  their 
Mends,  was  what  inspired  their  courage  ?  Cast- 
ner  Hanway  was  a  stranger,  only  a  few  months 
resident  in  the  neighborhood,  and  as  far  as 
appears,  not  known  to  one  black  man  present. 
They  could  not  know  whether  he  would  be  an 
ally  or  an  enemy,  or  indeed  either.  But  they 
knew  well  on  what  side  every  African  would 
array  himself  in  case  of  difficulty. 

But  I  insist  with  great  confidence,  that  Han- 
way, not  only  did  nothing  that  was  improper, 
but  every  thing  that  was  humane  and  proper. 
Seeing  the  negroes  with  arms  in  their  hands 
assembling  near  the  end  of  the  short  lane,  he 
called  out  to  them,  "Don't  shoot — don't  shoot — 
for  God's  sake  don't  shoot,"  words  sufficiently 
energetic  and  impassioned  to  demonstrate  the 
earnestness  of  his  feelings.  He  did  not,  it  is 
true,  say  any  thing  about  the  warrant,  but  Kline 
had  said  every  thing  that  was  necessary  to  pub- 
lish the  fact  of  its  being  present  before.  Mr. 
Hanway,  having  entreated  the  negroes  not  to 
fire,  withdrew  to  a  distance,  when,  looking  back, 
he  must  have  perceived  some  increasing  con- 
fusion, and  paused  a  little,  probably  apprehen- 
sive of  difficulty,  and  hesitating  as  to  how  far 
he  could  with  prudence  interpose.  When  at 
length  the  outbreak  commenced,  he  waited  till 
the  white  men,  chased  by  the  negroes,  overtook 
him,  and  he  sheltered  them  by  interposing  himself 
and  his  horse,  and  allowing  the  pursued  to  keep 
before  or  beside  him,  and  beckoning  and  calling 
to  the  pursuers  behind  him  not  to  fire,  retired  from 
the  ground,  and  did  not  separate  himself  from 
Pierce  till  after  the  last  shot  was  fired  and 
Pierce  was  wounded  by  his  side.  Isaac  Rogers, 
who  saw  this  scene,  is  the  witness  that  depicts  it. 

Is  there  any  thing  more  Mr.  Hanway  ought  to 
have  done  ?  Being  himself  a  stranger  to  the 
negroes,  certainly  not  a  favorite  with  them,  he 
could  not  have  interfered  further  without  immi- 
nent peril.  Had  one  or  two  white  men  of  the 
neighborhood  ventured  to  interfere  between  those 
Southern  gentlemen  and  the  negroes,  they  would 
have  incurred  the  peculiar  resentment  of  the 
negroes,  and  would  have  been  the  first  to  be 
sacrificed.  The  order  to  assist  under  the  circum- 
stances was  silly.  Had  it  been  obeyed,  the  cow- 
ardly Kline  would  have  left  them  in  the  lurch, 
and  no  good  object  would  have  been  answered. 
The  ingratitude  of  Pierce  for  the  salvation  of  his 
own  life,  is  a  striking  answer  to  every  suggestion, 
that  further  peril  ought  to  have  been  incurred, 
and  conveys  in  itself  an  admonition.  The  desire 
for  a  sacrifice  is  stronger  than  gratitude  for  im- 
portant services,  and  considerations  of  policy 
overcome  every  feeling  proper  to  the  man. 

But  take  it  that  Lewis  and  Hanway  both 
looked  on,  as  spectators.  Why  should  that  fact 
involve  them  in  a  prosecution  ?  Let  it  be  under- 
stood t«hat  every  white  man  who  witnesses  a 
scene  of  violence  between  the  negro  and  the  ne- 
gro-catcher, and  does  not  help  the  negro-catcher, 
is  to  be  considered  an  enemy  of  the  United  States, 
and  every  man  in  every  northern  State  whose 
presence  would  be  a  restraint  upon  the  negro, 


24 


will  keep  aloof  from  all  such  occasions  of  diffi- 
culty, and  leave  it  to  those  immediately  and  per- 
sonally interested  to  fight  the  matter  out  as  they 
may,  and  leave  it  to  the  legal  authoi-ities  to  deal 
with  the  offenders  after  the  mischief  is  done. 
Indeed,  I  am  not  sure  that  this  prosecution  will 
not  of  itself  produce  this  effect.  It  has  already 
proved  that  a  blameless  life,  an  unspotted  char- 
acter, and  great  propriety  of  conduct,  are  no  pro- 
tection against  a  legal  assault  upon  life  whenever 
excitement  happens  to  prevail,  and  that  no  man 
who  can  be  implicated  even  by  ingenious  false- 
hood, is  safe  when  the  views  of  a  neighboring 
State  are  to  be  answered.  Though  the  prosecu- 
tion should  fail,  Hanway  is  ruined.  The  whole 
earnings  of  ten  years  hard  handed  industry  are 
absorbed  in  the  expenses  of  this  prosecution. 
The  lesson  is  a  hard  one,  but  will  not  be  taught 
in  vain.  Whether  those  who  shall  hereafter 
come  to  Pennsylvania  in  pursuit  of  fugitive 
slaves  shall  derive  any  benefit  from  the  fear 
which  may  be  inspired  among  our  people  of  in- 
terposing under  any  circumstances  that  may 
arise  between  the  master  and  the  slave,  or  being 
found  near  enough  to  interpose,  lest  danger  of 
misconstruction  of  motives  and  objects  should  be 
incurred,  will  hereafter  appear.  My  apprehen- 
sion is,  that  the  consequences  of  this  prosecution 
will  be  most  injurious  in  every  respect  to  the  in- 
terest that  has  most  favored  it. 

I  have  endeavored  to  show  that  so  far  from 
being  guilty  of  treason,  there  is  no  reasonable 
ground  for  imputing  even  impropriety  to  our 
client. 

To  constitute  treason,  many  things  must  be 
proved,  not  one  of  which  here  exists.  War  must 
nave  been  levied, — here  was  no  war, — with  the 
intent  set  forth  in  the  indictment,  of  which  there 
is  not  a  semblance  of  evidence.  Our  client  must 
be  implicated,  by  evidence  of  combination, 
which  even  Kline  himself,  false  as  he  is,  does  not 
show  ;  and  two  witnesses  must  show  that  combi- 
nation, which  even  if  it  were  testified  to  by  the 
only  one  who  has  tried  to  do  it  here,  would  require 
in  jour  view  two  beside.  Never,  indeed,  was 
such  a  prosecution  founded  upon  evidence  so 
meagre,  nor  such  a  charge  seriously  made,  that 
would  be  so  foolish,  if  it  were  not  that  the  subject 
is  so  serious. 

If  the  issue  were  on  the  Fugitive  Slave  Law,  and 
the  question  here  was,  whether  Mr.  Hanway  dis- 
approved it ;  he  could  not  be  convicted  even  of 
that  offence — if  offence  it  may  be  permitted  to 
call  it.  Let  me  ask  you,  can  any  one  of  you  say, 
from  any  thing  you  can  have  heard  here,  that 
Castner  Hanway  has  any  opinion  either  one  way 
or  the  other  on  that  subject.  Yet,  though  he 
disapproved  of  that  law,  I  trust  there  is  still 
some  space  between  that  and  treason.  We  are 
not  here  to  try  that  law,  or  to  try  him  for  his 
opinions  about  it.  The  law  is  now  on  trial  itself 
in  the  country,  and  it  is  right  that  it  shall  have 
a  trial.  My  belief  is,  that  the  South  will  be  the 
first  to  pray  for  its  repeal,  and  that  it  is  now  a 
most  effective  instrument  for  working  out  eman- 
cipation. It  is  the  means  of  carrying  back  many 
to  slavery,  who  for  a  period  have  tasted  the 
sweets  of  liberty.    They  will  preach  abolition 


186 


TREASON  CASES. 


sentiments,  and  infuse  abroad  abolition  feeling 
among  their  own  people,  more  effectively  than  all 
the  abolition  lecturers,  north  of  Mason  and 
Dixon's  line.  Every  reclaimed  slave  becomes  an 
apostle  of  freedom,  and  creates  wherever  he 
goes  a  circle  of  disaffection  around  him.  The 
consequences  of  this  are  not  yet  apparent,  but 
it  will  not  be  long  till  they  will  be  seen  and  felt, 
and  the  South  will  pray  earnestly  to  be  relieved 
of  a  law  which  endangers  their  own  security. 

The  law  of  treason  ought  by  this  time  to  be 
understood. 

Montesquieu  informs  us  in  his  Spirit  of  Laws, 
that  it  is  determined  by  the  laws  of  China,  that 
whoever  shows  any  disrespect  to  the  emperor  is 
to  be  punished  with  death.  However  variously 
defined,  the  law  of  treason  in  most  countries  is 
reduced  by  ingenious  construction,  sometimes  at 
the  instance  of  faction,  but  more  often  at  the 
command  of  power,  to  about  the  same  thing.  In 
Austria  and  in  Prussia,  in  England  and  in 
France,  it  has  been  habitually  used  as  a  ready 
instrument  of  vengeance  against  an  obnoxious  per- 
son or  class,  or  as  a  convenient  pretext  for  mur- 
der, when  demanded  by  state  policy,  or  the  plea- 
sure of  the  ruling  authorities.  But  the  fathers 
of  our  government,  deeming  the  life  and  liberty 
of  the  citizen  of  too  much  moment  to  be  subjected 
to  the  sport  of  factious  excitement,  or  to  the 
dominant  spirit  of  power,  ever  aggressive  and 
impatient  of  contradiction  or  restraint,  have 
made  the  definition  of  treason  a  part  of  the  par- 
amount law,  which  every  federal  officer  is  sworn 
to  support.  This  definition  is  short,  plain,  and 
precise.  Its  meaning  is  involved  in  no  phrases 
of  dubious  import,  or  of  technical  subtlety,  but 
is  as  easily  understood  by  the  layman  as  the  law- 
yer, by  the  way-faring  man  as  by  the  scholar,  by 
the  juryman  as  by  the  judge.  To  the  layman  and 
way-faring  man  it  simply  declares  what  is  trea- 
son. To  the  lawyer  and  the  scholar,  bewildered 
in  the  mazes  of  the  metaphysical  jargon  with 
which  judicial  butchery,  in  violent  times,  racked 
their  brains  for  reasons  for  doing  wrong  ;  to  the 
judge  and  the  juryman  in  admonition  of  the  duty 
of  discarding  bad  precedents  and  of  abstaining 
from  the  extension  of  crime  by  construction,  it 
does  more  ;  it  declares  what  is  not  treason. 

"  Treason  against  the  United  States,  shall  con- 
sist only  in  levying  war  against  them,  or  in  ad- 
hering to  their  enemies,  giving  them  aid  and 
eomfort." 

This  definition  was  carefully  considered  before 
it  was  adopted.  It  was  framed  by  men  who,  in 
the  exercise  of  the  right  of  revolution,  had  risked 
the  penalties  of  treason,  and  studied  the  subject 
on  the  steps  of  the  scaffold.  Justly  indignant  at 
the  wrongs  that  had  been  perpetrated,  and  the 
blood  that  had  been  shed  for  fictitious  offences, 
made  treason  by  ingenious  construction,  they 
determined  to  deprive  both  faction  and  power  of 
so  potent  an  engine  of  mischief,  long  used  and 
abused  by  demagogues  and  despots.  They  cut 
off  at  one  blow,  that  once  flourishing  and  fatal 
branch  of  interpretative  treason,  whose  fruit  was 
not  justice  to  the  guilty,  but  death  to  the  inno- 
cent. They  defined  the  crime  by  terms  severely 
strict  and   rigorously  exact.     Every  word  is 


highly  significant.  There  is  not  a  syllable  to 
spare,  nor  one  on  the  meaning  of  which  sophistry 
can  hang  a  doubt. 

"Treason  shall  consist  only  in  levying  war, 
&c."  The  courts  shall  make  nothing  else  trea- 
son. The  legislature  shall  make  nothing  else 
treason.  No  power  in  the  State  shall  make  any 
thing  else  treason.  The  same  words  which  gave 
to  the  acts  enumerated  the  highest  denomination 
in  the  catalogue  of  crimes,  contain  an  emphatic 
prohibition  against  the  slightest  extension.  The 
offence  requires  the  existence  of  war.  Its  sole 
element  is  war.  It  cannot  be  committed  in  time 
of  peace.  To  be  guilty  of  the  crime  a  person  must 
be  actually  engaged  in  the  war,  or  giving  aid  to 
those  that  are.  To  contemplate  war  is  not 
enough,  to  advise  it  is  not  enough,  to  conspire  to 
wage  it  is  not  enough.  The  war  must  be  actually 
levied. 

It  must  not  be  a  mere  tumult — a  fight — a 
struggle  in  arms  between  individuals  or  compa- 
nies, or  violence  offered  to  an  executive  or  mili- 
tary officer  of  the  government,  in  a  matter  re- 
lating only  to  individual  interest  or  private  right, 
but  it  must  be  national  in  its  scope  and  object. 
It  must  possess  that  dignity  in  mischievous  de- 
sign that  aims  at  the  life  of  the  government,  or 
at  least  at  the  prostration  of  some  branch  of  its 
power  by  an  armed  opposition.  It  must  have 
the  impress  of  universality.  A  contest  between 
the  lords  of  neighboring  manors,  involving  the 
destruction  of  many  lives  by  small  armies,  raised 
and  maintained  for  the  purposes  of  mutual  re- 
venge and  plunder,  was  decided  even  by  an  Eng- 
lish court,  in  violent  times,  to  be  no  treason.  An 
attack  on  the  negro  population  of  a  town  or  city, 
by  an  armed  mob  of  a  thousand,  such  as  has 
occurred  in  both  Columbia  and  Philadelphia 
within  a  few  years,  has  never  been  supposed  to 
be  treason  A  combination  to  destroy  a  newspa- 
per press  by  violence,  and  to  overcome  all  oppo- 
sition by  arms,  and  the  purpose  executed,  as 
happened  formerly  in  Baltimore,  when  the  Fede- 
ral Republican  press  was  destroyed,  General 
Lingan  killed,  and  a  number  of  other  persons 
grievously  injured  ;  though  the  mob  held  posses- 
sion of  the  city  for  days,  overawed  the  police, 
and  set  the  municipal  authorities  at  defiance, 
was  deemed  no  more  than  misdemeanor.  The 
driving  of  the  peaceable  Mormons  from  the  city 
of  Nauvoo,  at  the  point  of  the  bayonet,  and  with 
no  inconsider.  ble  slaughter  too,  though  battles 
were  fought  and  a  siege  maintained,  passed  un- 
noticed by  the  United  States  government  as  an 
offence  cognizable  only  by  the  local  tribunals. 
The  same  remark  applies  to  the  Philadelphia 
riots  of  1846,  when  churches  were  burnt  and 
houses  destroyed,  your  streets  barricaded,  your 
windows  shaken  by  the  thunder  of  artillery 
launched  in  civil  strife,  and  your  population  of 
near  half  a  million  of  persons  stricken  with  ter- 
ror and  forced  to  call  on  the  country  for  protec- 
tion. Such  cases,  though  wearing  much  the  ap- 
pearance of  war  on  a  limited  scale,  and  possess- 
ing many  of  its  characteristic  features,  do  not 
amount  to  war  in  the  constitutional  sense,  as 
generally  received  and  understood. 

Upon  the  question,  what  constitutes  a  levying 


TOTTED  STATES  V.  BLOWAY. 


1ST 


of  war,  there  have  been  several  determinations 
in  the  Federal  Courts.  The  first  occasion  that 
occurred  for  its  consideration,  was  that  of  the 
Western  insurrection  in  1794.  five  years  after  the 
constitution  was  adopted.  The  second  vras  Fries' 
case,  only  five  years  later.  The  government  vras 
then  new.  the  treasury  exhausted,  and  the  nation 
comparatively  weak.  The  trial  of  the  great  ex- 
periment of  a  constitutional  republic  was  con- 
sidered of  doubtful  success,  and  was  watched 
with  earnest  solicitude  by  the  statesmen  of  the 
day.  The  value  of  the  Union  was  still  a  debate- 
able  subject.  Eeverence  for  the  constitution  had 
not  become  a  common  sentiment.  In  every 
speck  of  disaffection  there  was  danger.  Every 
open  opposition  to  the  regular  action  of  the  go- 
vernment, furnished  just  cause  for  alarm.  The 
federal  authority  was  in  the  hands  of  men  who 
held  high-toned  opinions,  and  who  were  disposed 
to  carry  out  these  opinions,  in  the  exercise  of  their 
official  functions.  The  judges  had  been  educated 
in  the  English  law,  and  naturally  looked  for 
their  guides  to  the  precedents  which  that  law 
furnished,  and  which  were  established  in  dark  and 
remote  periods,  and  who  could  not  anticipate  the 
more  liberal  and  enlightened  sentiments  which 
have  since  animated  English  jurisprudence.  Un- 
der such  circumstances  we  should  reasonably 
expect  to  see  strong  ground  taken  and  strong 
doctrine  promulgated.  And  such  we  find  actually 
to  have  been  the  case.  Under  different  circum- 
stances the  law  might  have  been,  and  probably 
would  have  been  differentia  ruled ;  or  general 
principles  laid  down  less  broadly.  Had  the 
strength  of  our  government  been  tested  by  fifty 
years  experience  :  had  our  population  instead  of 
three,  been  thirty  millions :  had  our  territory 
extended  from  the  St.  Lawrence  to  the  Rio 
Grande,  and  from  the  Atlantic  to  the  Pacific,  and 
had  the  increasing  intelligence,  light,  and  liber- 
ality of  another  half  century  thrown  its  influence 
upon  the  judicial  mind,  it  can  scarcely  be  doubt- 
ed that  the  doctrines  advanced  would  have  as- 
sumed a  different  tone,  and  their  drift  and  ten- 
dency taken  a  different  direction.  As  it  was,  they 
gave  great  dissatisfaction,  and  have  been  sub- 
jected to  severe  criticism  by  learned  commenta- 
tors. Still  as  far  as  they  bore  upon  the  particu- 
lar circumstances  under  investigation,  in  applica- 
tion to  the  facts  proved  by  the  evidence  in  the 
several  cases,  they  may  perhaps  be  safely  ad- 
mitted to  have  the  force  of  precedents.  But 
they  are  not  to  be  received  as  bearing  upon  a 
case  varying  in  any  material  point  from  those 
then  in  hand. 

The  history  of  the  Western  insurrection  is 
generally  familiar.  There  was  an  extensive 
combination,  embracing  great  numbers  of  the  in- 
habitants beyond  the  Alleghany  monntains,  not 
only  of  the  State  of  Pennsylvania,  but  of  Virginia 
also,  to  resist  by  force  the  action  of  the  general 
government.  It  commenced  in  1791,  and  con- 
tinued till  1791.  Peaceable  means  were  first 
resorted  to.  Application  was  made  to  Congress 
for  a  repeal  of  the  obnoxious  Act. 

That  having '  failed,  resort  was  had  to  force, 
and  within  the  disaffected  territory  the  excise 
law  was  as  effectively  annulled  as  though  it  had 


been  repealed  by  Congress.  Even  those  who 
were  disposed  to  obey  it.  were  prevented  through 
the  terror  of  the  insurgents.  Proclamations  were 
issued  by  the  President :  requisitions  were  made 
on  the  militia  of  New  Jersey.  Pennsylvania, 
Maryland,  and  Virginia  ;  and  our  army,  com- 
posed of  several  divisions,  and  commanded  by  an 
officer  of  high  military  reputation,  was  marched 
into  the  disaffected  region,  and  a  considerable 
force  under  General  Morgan  was  left  to  occupy 
it  as  a  compered  country.  It  was  in  view  of 
such  circumstances  that  the  language  quoted  by 
my  friend,  the  District  Attorney,  was  employed. 
Judge  Patterson  declared  that  the  object  of  the 
insurgents  --was  of  a  general  nature,  and  of  na- 
tional concern.'*  The  magnitude  of  the  effort 
was  in  proportion  to  that  of  the  object,  and  re- 
quire! no  inconsiderable  exertion  of  the  force  of 
the  nation  to  defeat  it :  it  was  therefore  deemed 
a  icar.  and  those  that  waged  it  in  opposition  to 
the  national  authority,  traitors. 

The  Northampton  insurrection  was  not  of  equal 
extent ;  and  owing  to  the  prompt  and  efficient 
action  of  the  government,  did  not  become  so 
formidable.  Three  counties,  however.  Northamp- 
ton, Bucks,  and  Montgomery,  were  engaged  in 
the  opposition,  which  assumed  an  aspect  sufficient- 
ly threatening  to  require  the  interposition  of 
military  force.  The  legislature  of  Pennsylvania 
resolved  to  co-operate  with  the  general  govern- 
ment, in  case  it  should  become  necessary,  and 
the  authority  of  the  executive  of  the  State,  as 
well  of  the  Union,  was  actively  exerted  to  sup- 
press the  spirit  of  resistance.  The  object  of  the 
insurgents  was  to  obtain  a  repeal  of  the  house 
and  direct  tax  law:  they  proceeded  to  acts  of 
violence,  and  they  succeeded  in  impressing  the 
public  with  the  opinion,  or  at  least  the  apprehen- 
sion, that  they  had  sufficient  power  to  effect  their 
purposes.  It  was  in  reference  to  such  circum- 
stances that  the  judges  delivered  the  charges  so 
largely  quoted  by  the  District  Attorney  in  his 
opening.  They  did  not  decide  that  these  circum- 
stances constituted  a  levying  of  war.  but  they 
presented  the  case  in  such  a  way  as  gave  a  pretty 
clear  intimation  of  their  opinion,  and  on  a  pre- 
cisely similar  state  of  facts,  those  opinions  would 
operate  with  great  weight.  Still  the  general  ex- 
pressions are  to  be  applied  to  the  cause  then  in 
hand,  and  not  to  a  cause  altogether  differently 
constituted. 

Judge  Peters  was  certainly  too  sound  a  lawyer, 
and  too  humane  a  judge,  to  design  that  the  lan- 
guage imputed  to  him,  should  be  understood  in 
its  strict  literal  sense.  The  report  of  the  Fries 
case,  makes  him  say.  "  it  is  treason  in  levying 
war  against  the  United  States,  for  persons  who 
have  none  but  a  common  interest  with  their 
fellow-citizens,  to  oppose  or  prevent  by  force, 
numbers,  or  intimidation,  a  pubEc  and  general 
law  of  the  United  States,  with  intent  to  prevent 
its  operation,  or  compel  its  repeal ;"  and  this 
passage  is  torn  from  its  context,  and  presented 
here  by  the  learned  counsel  of  the  United  States, 
as  an  authoritative  exposition  of  the  law  of  trea- 
son. The  force  of  the  language  is  most  readily 
perceived  by  rejecting  all  superfluous  words, 
throwing  out  such  members  of  the  sentence,  con- 


188 


TREASON  CASES. 


nected  by  the  disjunctive  conjunction,  as  obscuring 
the  point,  and  making  a  somewhat  different  col- 
location of  those  retained,  by  placing  the  verb 
and  the  object  nearer  together.  Thus,  "it  is 
treason,  in  levying  war  against  the  United  States, 
to  oppose  by  intimidation  a  general  law,  with  in- 
tent to  prevent  its  execution."  This  is  the  con- 
centrated sense  of  the  passage,  and  if  it  is  to  be 
considered  as  announcing  a  general  principle, 
applicable  to  all  cases,  as  the  District  Attorney 
would  have  you  suppose,  it  is  to  be  taken  as  de- 
claring that  levying  war,  in  the  meaning  of  the 
Constitution,  does  not  require  force,  but  only  in- 
timidation, and  that  the  intent  with  which  the  in- 
timidation is  used,  need  not  go  beyond  the  pre- 
vention of  the  execution  ot  a  law  of  Congress,  in 
any  particular  instance.  The  words  are  without 
qualification.  To  smuggle  goods  is  to  prevent 
the  execution  of  the  revenue  laws,  and  to  threaten 
an  officer  of  the  United  States,  attempting  to 
execute  those  laws,  so  as  to  intimidate  him, 
would  be  treason,  if  this  is  all  that  would  be  re- 
quired to  constitute  it.  Even  to  prevent  a  Uni- 
ted States  Marshal  by  intimidation  ftom  sum- 
moning a  juror  to  attend  this  court,  would,  ac- 
cording to  this  construction,  amount  to  the  same 
offence.  But  this  was  not  the  meaning  of  Judge 
Peters.  He  meant  nothing  so  absurd.  He 
spoke  in  reference  to  the  facts  before  him,  the 
means  used  and  the  object  avowed.  He  intended 
merely  to  recognize  the  decision  in  the  case  of 
the  Western  insurgents,  and  to  do  no  more,  for 
he  says  in  immediate  connection  with  the  pas- 
sage excerpted  from  his  opinion:  "Force  is 
necessary  to  complete  the  crime,  but  the  quantum 
of  force  is  immaterial.  This  point  was  deter- 
mined by  this  court  on  a  former  occasion,  which 
was,  though  not  in  all  circumstances,  yet,  in 
principle  and  object,  very  analogous  to  the  sub- 
ject of  our  present  inquiries.  I  hold  myself 
bound  by  that  decision,  which,  with  due  conside- 
ration, I  think  legal  and  sound."  What  that  de- 
cision was,  we  know  ;  for  the  facts  have  become 
a  subject  of  history ;  and  the  decision  was,  that 
that  there  was  a  levying  of  war  within  the  mean- 
ing of  tne  Constitution.  But  what  the  charge  of 
the  court  was,  we  do  not  know.  We  nave  no 
report  of  it,  but  only  of  what  is  said  to  be  its 
substance.  We  have  not  the  language  of  Judge  j 
Patterson,  and  who  can  say  that  there  has  been 
no  transmutation  in  the  process  of  condensing  ; 
or,  that  the  meaning  has  been  faithfully  pre- 
served, while  many  of  the  words  that  conveyed 
that  meaning  have  been  omitted,  and  the  phra- 
seology changed?  As  the  book  has  it,  he  says  : 
"  The  first  question  to  be  considered,  is  what 
was  the  general  object  of  the  insurrection  ?  If 
the  object  was  to  suppress  the  excise  offices,  and 
to  prevent  the  execution  of  an  Act  of  Congress  by 
force  and  intimidation,  the  offence  in  legal  esti- 
mation is  high  treason.  It  is  an  usurpation  of 
the  authority  of  the  government.  It  is  high 
treason  by  levying  war ;  taking  the  testimony  in 
a  national  and  connected  point  of  view.  This 
was  the  object.  It  was  of  a  general  nature  and 
of  national  concern."  Whar.  State  Tr.  p.  182. 
In  this  description  of  the  offence,  we  recognize  j 
nothing  of  the  accuracy  or  finish,  which  charac-  | 


terize  the  productions  of  that  eminent  jurist,  and 
it  is  most  certain,  that  it  does  not  embody  his 
whole  meaning.  For  it  cannot  be  doubted  that 
an  insurrection  to  suppress  the  excise  offices  of 
a  limited  district  of  country,  and  to  prevent  the 
execution  of  an  Act  of  Congress  therein,  through 
a  spirit  of  private  revenge,  with  a  view  to  indi- 
vidual interest,  or  for  purposes  of  plunder,  though 
by  force  and  intimidation,  would  not  amount  to  a 
levying  war,  and  would  not  be  treason ;  and  it 
is  an  imputation  upon  the  candor,  fairness,  and 
impartiality  of  the  judge,  to  suppose  that  he  was 
not  careful  in  describing  the  crime  of  which  the 
defendants  were  accused,  and  to  attribute  to  him 
an  omission  in  that  description  of  the  main  ingre- 
dient of  the  offence — the  intent  with  which  the 
overt  acts  were  done.  All  that  we  have  there- 
fore in  relation  to  the  subject  of  levying  war,  in 
the  reports  of  the  trials  of  the  Western  insur- 
gents, and  of  Fries,  in  the  Northampton  case,  is 
very  little,  and  that  little  of  no  authority,  be- 
yond the  cases  decided.  When  such  cases  occur 
again,  they  will  be  precedents.  Until  they  do, 
the  reports  of  these  trials  may  be  left  upon  the 
shelf,  without  detriment  to  law  or  justice. 

I  leave  out  of  view  altogether,  the  charges  to 
grand  juries,  from  which  the  learned  District 
Attorney  has  made  such  copious  quotations, 
because  they  do  not  possess  the  character  of 
authority  ;  and  though  entitled  to  respect  as  the 
opinions  of  eminent  men,  are  entitled  to  no 
more  respect  than  the  opinions  of  other  men 
equally  able,  who  have  never  held  judicial  posi- 
tions. Such  charges  are  delivered  without  the 
benefit  of  argument  by  counsel,  and  as  guides  to 
an  inquiry  preliminary  to  the  trial,  and  are 
never  to  be  cited  as  binding  upon  the  judgment 
or  consciences  of  judges  or  juries.  The  charge 
of  Judge  Chase  to  the  jury  in  the  second  trial  of 
Fries,  may  be  put  in  much  the  same  category,  as 
charges  to  grand  juries  ;  as  by  his  arbitrary  con- 
duct on  the  trial,  he  drove  the  counsel  for  the 
prisoner  out  of  court,  and  deprived  himself  of 
the  assistance  which  he  might  have  received  from 
their  arguments,  in  interpreting  the  law.  It  is 
pertinent  however  to  remark,  that  in  his  state- 
ment of  the  law,  he  has  been  more  precise,  exact 
and  definite,  than  either  of  the  judges  whom  my 
friend  .has  quoted  at  large,  and  been  more  care- 
ful also,  to  exclude  any  inference  that  a  war  can 
be  less  than  a  blow  aimed  at  the  sovereignty  of 
the  republic,  by  the  application  of  force,  and 
with  purposes,  and  by  means  commensurate  with 
such  an  object.  "Is  is,"  says  he,  "  the  opinion 
of  the  court,  that  an  insurrection  or  rising  of 
any  body  of  people,  to  prevent  by  force  or  vio- 
lence, any  object  of  a  great  public  nature,  of 
public,  general,  or  national  concern,  is  a  levying 
of  war  against  the  United  States,  within  the  con- 
templation and  construction  of  the  Constitution." 
And  he  takes  the  precaution  further  to  observe : 
"The  court  are  of  the  opinion,  that  the  assem- 
bling of  bodies  of  men  armed  and  arrayed  in  a 
warlike  manner,  for  purposes  only  of  a  private 
nature,  is  not  treason,  although  the  judges,  or 
other  peace-officers,  should  be  insulted  or  re- 
sisted, or  even  great  outrages  committed  to  the 
persons  or  property  of  our  citizens." 


UNITED  STATES  V.  HAXWAY. 


189 


The  prosecution  has  referred  to  this  opinion 
without  reading  it.  It  happens  not  to  fall  into 
their  line  of  argument  so  well  as  the  looser 
phraseology,  attributed  to  Judges  Patterson  and 
Peters.  Its  terms  are  still  very  general,  and 
they  need  the  illustration  -which  is  furnished  by 
the'  facts  to  which  they  were  applied.  Those 
facts  have  been  already  adverted  to.  A  wide 
spread  disaffection  existed.  Formidable  prepa- 
rations were  made  to  resist  the  law  by  force  in 
three  counties,  and  actual  reristance  had  been 
made,  yet  the  court  in  the  case  of  Fries,  has 
been  universally  considered  as  having  carried 
the  law  of  treason  to  the  utmost  allowable  limits, 
if  it  has  not  surpassed  them.  The  celebrated 
Luther  Martin,  in  his  argument  on  Burr's  trial, 
vol.  2,  274,  after  proving  by  authority,  "  that  an 
assemblage  of  men.  even  armed  in  military  array, 
is  not  to  be  considered  as  treasonable,  unless 
their  intention  be  proved  to  be  treasonable,  that 
is,  (applying  the  doctrine  to  this  country.  )  unless 
the  intention  be  to  subvert  the  government  of  the 
United  States,"  uses  this  strong  language. 

"Sir,  I  execrate  a  contrary  doctrine  as  highly 
tyrannical  and  oppressive.  And  here  I  beg  leave 
to  enter  my  censure  against  the  decisions  of  the 
court  of  Pennsylvania,  on  this  subject,  in  the 
cases  of  what  were  called  the  whiskey  and  hot 
water  insurrections.  Some  of  them  were  decided 
in  my  opinion  improperly  to  be  guilty  of  treason, 
according  to  the  Constitution  of  the  United 
States.  I  shall  not  fully  examine  this  subject  at 
present,  bnt  I  think  it  my  duty  to  enter  my 
solemn  protest  against  the  decision  of  the  Court 
in  those  cases,  although  made  by  gentlemen  of 
learning  and  integrity,  and  if  ever  the  question 
should  come  before  the  Supreme  Court,  I  will 
endeavor  to  show  that  those  decisions  were  ille- 
gal and  improper.  In  those  cases  there  was  no 
design  to  subvert  the  government.  Such  a 
thought  was  not  entertained.  It  was  the  expres- 
sion of  their  disapprobation  of  a  particular  law, 
and  an  opposition  to  the  execution  of  that  un- 
popular law,  and  the  intention  of  those  people 
went  no  further  than  to  induce  its  repeal.  But 
according  to  the  authority  already  referred  to, 
though  war  was  levied  with  all  the  solemnities 
of  actual  war,  though  violent  acts  were  committed 
and  a  number  of  people  killed,  yet  the  par- 
ties engaged  in  it  would  be  only  guilty  of  a 
great  riot,  or  at  most  of  murder,  but  not  of 
treason,  on  this  principle,  that  their  intention  was 
not  treasonable,  that  the  subversion  of  the  govern- 
ment was  never  in  their  contemplation." 

Judge  Tucker,  in  his  valuable  edition  of  Black- 
stone,  reviews  the  doctrine  of  these  decisions, 
and  dissents  from  it  in  an  elaborate  commentary, 
written  with  great  force  and  comprehensiveness 
of  reasoning. 

In  United  States  vs.  Hoxie,  already  referred 
to  by  my  colleague,  Judge  Livingston  cites  the 
Western  insurgent  cases,  and  Fries  case,  without 
approbation,  and  draws  broadly  the  line  of  dis- 
tinction, between  such  public  systematised  in- 
surrections, as  threaten  the  existence  of  the 
government,  and  those  minor  offences,  which 
partake  more  or  less  of  opposition  to  the  laws  of 
the  United  States,  but  which  from  their  sudden- 


ness, imbecility,  and  want  of  organization,  are 
incapable  of  making  a  serious  impression  upon 
the  peace  of  the  nation. 

In  the  United  States  v.  Fries,  Judge  Chase  has 
drawn  his  description  of  treason  from  the  Eng- 
lish authorities,  but  has  omitted  those  specifica- 
tions which  assist  to  explain  the  sense  of  the 
commentator  and  limit  the  application  of  the 
terms  employed,  and  it  is  useful,  therefore,  to 
refer  to  those  authorities  for  a  more  definite  idea 
of*  what  is  meant  by  levying  war.  Lord  Hale, 
vol.  L,  p.  150,  says,  "An  actual  levying  of  war 
against  the  king  consists  of  two  principal  parts 
or  ingredients,  namely  :  First,  it  must  be  a  levy- 
ing of  war :  second,  it  must  be  a  levying  of  war 
against  the  king.  What  shall  be  said  to  be  a 
levying  of  war  is  partly  a  question  of  fact.  For 
it  is  not  every  ixnlawful  or  riotous  assembly  of 
many  persons  to  do  an  unlawful  act,  though  de  facto 
they  commit  the  act  they  intend,  that  makes  a 
levying  of  war,  (for  then  every  riot  would  be 
i  treason,  and  a  1  the  acts  against  riotous  and  un- 
'  lawful  assemblies  had  been  vain  and  needless,) 
but  it  must  be  such  an  assembly  as  carries  with 
j  \t  specie m  belli;  as  if  they  ride  or  march  vezillis 
explicatis,  or  if  they  formed  into  companies,  or 
|  were  furnished  with  military  officers  ;  or  if  they 
are  armed  with  military  weapons,  as  swords, 
guns,  balls,  halberts,  pikes,  and  are  so  circum- 
stanced, that  it  may  be  reasonably  concluded 
they  are  in  a  posture  of  war." 

The  language  of  Justice  Foster,  (Foster's  Cr.  L. , 
p.  209.)  though  not  so  particular  in  the  enume- 
ration of  the  circumstances  necessary  to  consti- 
tute a  levying  of  war  in  the  sense  of  the  statute, 
is  to  the  same  general  effect.  And  he  adds,  that 
an  insurrection  to  throw  down  all  inclosures  in  a 
particular  place  or  county,  to  pull  down  all 
j  brothels  in  a  particular  town,  or  to  remove  a 
lo  al  nuisance,  is  not  such  an  insurrection  as 
j  amounts  to  a  levying  of  war. 

The  last  decision  in  the  American  courts  is 
that  in  United  States  v.  Hoxie,  already  mentioned. 
In  that  case  Vandusen  had  sent  a  raft  ot  timber 
to  be  transported  to  Canada,  in  violation  of  the 
embargo  laws.  It  was  seized  on  its  way  by  the 
collector  of  Vermont,  and  placed  in  the  custody 
of  a  company  of  militia.  While  the  company 
were  at  some  distance  from  the  raft,  a  company 
,  of  about  sixty  men,  hired  for  the  purpose,  and 
'  armed,  some  of  them  with  a  dozen  muskets,  and 
!  the  rest  with  clubs  and  spike  poles,  assembled 
with  the  intention  of  rescuing  the  raft,  and  if 
necessary,  of  making  prisoners  of  the  troops  that 
guarded  it.  They  got  possession  of  the  raft 
without  resistance,  no  one  being  near  it,  and 
proceeded  towards  Canada.  In  about  an  hour, 
as  the  raft  passed  a  point  of  the  shore  twenty 
rods  distant,  the  troops  fired  upon  it,  and  those 
on  the  raft  returned  the  fire.  This  firing  con- 
tinued until  the  raft  was  beyond  the  reach  of 
musket  shot.  About  one  hundred  shots  were 
fired  from  the  raft,  and  the  balls  struck  trees  on 
the  shore,  and  the  shot  from  shore  also  struck 
the  raft,  but  no  persons  were  wounded.  The 
firing  was  in  earnest,  and  intended  for  execution. 

Here  was  a  combination  of  men  to  prevent  the 
execution  of  an  Act  of  Congress  by  force,  the- 


190 


TREASON  CASES. 


authority  of  the  United  States  successfully  re- 
sisted, and  the  occurrence  of  an  actual  skirmish 
between  an  armed  body  and  troops  in  the  service 
of  the  nation  sent  to  defeat  the  unlawful  enter- 
prise. Such  circumstances  clearly  constitute  a 
case  of  treason,  as  the  law  is  expounded  to  us  by 
the  District  Attorney.  Not  a  single  ingredient 
of  the  offence  is  wanting,  yet  the  Court  decided 
in  the  most  emphatic  terms,  that  the  offence  was 
not  treason.  Judge  Livingston  remarks,  that 
were  the  examination  restricted  to  the  consider- 
ation of  the  crime,  as  defined  in  the  Constitution, 
"it  is  impossible  that  a  moment's  doubt  could  be 
harbored  of  the  true  character  of  this  transaction. 
A  levying  of  war  without  having  recourse  to  rules 
of  construction  or  artificial  reasoning,  would 
seem  to  be  nothing  short  of  the  employment,  or 
at  least,  of  the  embodying  of  a  military  force, 
armed  and  arrayed  in  a  warlike  manner,  for  the 
purpose  of  forcibly  subverting  the  government, 
dismembering  the  Union,  or  destroying  the  legis- 
lative functions  of  Congress.  These  troops 
should  be  so  armed  and  so  directed  as  to  leave 
no  doubt  that  the  United  States  or  their  govern- 
ment were  the  immediate  object  of  their  attack." 
After  a  full  review  of  the  English  and  American 
cases  on  the  general  subject,  the  learned  judge 
proceeds,  "It  is  impossible  to  suppress  the  as- 
tonishment which  is  excited  at  the  attempt  which 
has  been  made  to  convince  a  court  and  jury  of 
this  high  criminal  jurisdiction,  that  between  this 
and  levying  war,  there  is  no  difference.  Can  it  be 
seriously  thought,  that  an  American  jury,  with  the 
Constitution  of  the  United  States  as  a  guide  to  their 
interpretation,  or  even  on  the  cases  which  have 
been  cited,  can  be  brought  by  engrafting  construc- 
tion on  construction  to  leave  far  behind  them  Eng- 
lish judges  and  English  juries  in  their  exposition 
of  the  law  of  treason.  In  what  can  we  discover 
the  treasonable  mood,  which  common  sense  as 
well  as  all  the  authorities  tell  us  is  of  the  very 
essence  of  the  offence  ?  Can  it  be  collected  from 
the  employment  of  ten  or  twelve  muskets  ? 
Some  judges  have  said,  how  correctly  is  here  of 
little  moment,  that  the  quantum  of  force  is  im- 
material. But  when  we  find  it  so  very  small  and 
despicable,  it  furnishes  strong  evidence  of  some 
intent  very  far  short  of  measuring  their  strength 
with  the  United  States ;  unless  we  can  believe  that 
a  force,  if  it  deserve  that  name,  scarcely  compe- 
tent to  the  reduction  of  a  single  family,  were 
meditating  hostilities  and  rebellion  agaiust  a  gov- 
ernment, defended  by  several  millions  of  freemen. 

This  decision  places  the  law  of  treason  upon 
an  intelligible  principle,  and  gives  to  the  Consti- 
tution a  common  sense  construction.  It  does 
away  with  the  idea  of  constructive  war ;  of  a  war 
in  a  legal  sense,  without  a  war  in  fact ;  of  a  war 
by  which  men  may  become  traitors  without  a  war 
of  which  the  country  has  ever  had  any  knowledge ; 
and,  in  short,  of  all  microscopic  wars,  to  be  dis- 
tinguished only  by  the  aid  of  such  optic  instru- 
ments, as  a  Billings  or  a  Scroggs  of  imfamous 
memory  have  invented  to  magnify  innocent  specks 
into  bloody  blotches,  when  a  judicial  assassina- 
tion was  resolved  upon  in  council. 

Judge  Grier.  Mr.  Brent,  are  you  ready  to 
proceed 


Mr.  Brent  then  rose,  and  spoke  as  follows  : — 
May  it  please  the  Court ;  Gentlemen  of  the 
Jury.  I  was  in  hopes  that  I  should  not  be  pre- 
cipitated on  the  argument  on  behalf  of  the  prose- 
cution to-day.  I  am  suffering  from  a  severe 
cold,  of  which  I  had  hoped  to  be  relieved  in  the 
morning. 

Mr.  Bead.  I  have  only  to  say,  (may  it  please 
the  Court,)  that  we  do  not  desire  the  Attorney 
General  of  Maryland  to  speak,  if  he  is  at  all  in- 
disposed. 

Mr.  Brent.  I  prefer  commencing  at  once, 
rather  than  delay  the  Court. 

Judge  Grier.  Mr.  Brent,  if  you  are  unable 
to  commence  your  speech  to-day,  you  can  post- 
pone it  till  Monday,  as  we  feel  disposed  to  give 
every  gentleman  a  fair  opportunity  for  the  pre- 
paration of  his  argument. 

Mr.  Brent.  Your  honor  will  perceive,  that  I 
am  not  physically  disabled,  but  still  I  am  suffer- 
ing from  that,  which  will  in  some  degree  affect 
my  voice. 

Gentlemen —  If  a  stranger  (unacquainted  with 
the  facts  of  this  case,)  had  been  present  at  certain 
stages  of  this  trial,  he  would  have  supposed  that 
the  State  of  Maryland  in  all  her  sovereignty, 
was  upon  trial  before  this  jury.  He  would  not 
have  supposed  that  Castuer  Hanway,  (surround- 
ed by  a  host  of  sympathizing  friends  and  eulo- 
gizing witnesses,)  was  here  for  any  other  purpose 
than  as  an  object  of  glorification  and  exaltation. 
And  yet,  gentlemen,  he  stands  arraigned  upon  the 
oaths  of  the  Grand  Jurors  for  the  Eastern  Dis- 
trict of  Pennsylvania.  He  stands  arraigned  upon 
an  indictment,  charging  him  with  the  heinous  of- 
fence of  treason — treason  against  his  country !  Did 
the  State  of  Maryland,  do  this  ?  Did  the  State 
of  Maryland,  send  any  agent  here  whatsoever, 
for*  the  purpose  of  going  before  that  Grand  Jury, 
for  the  purpose  of  instituting  that  prosecution, 
and  urging  on  the  grand  inquest  of  your  State  ? 
No,  gentlemen.  It  has  been  procured  by  the 
instrumentality  of  the  constituted  authorities,  by 
the  regular  officers  of  your  court,  and  by  the 
consciences  of  the  Grand  Jury.  But,  gentlemen, 
allusion  has  been  made  to  my  own  appearance  in 
this  case.  An  allusion  in  the  public  prints,  who 
have  not  sought  to  investigate  the  facts  connected 
with  that  appearance — an  allusion  echoed  here 
in  the  opening  statement  of  counsel.  I  will 
therefore,  (though  contrary  to  my  habit,)  speak 
somewhat  of  myself,  and  in  as  few  remarks  as 
possible,  explain  why  my  colleague  and  myself, 
have  appeared  in  this  case.  This  is  but  the 
second  instance  in  which  a  citizen  of  Maryland, 
pursuing  his  lawful  property  upon  the  soil  of 
your  State,  has  fallen  a  victim  ;  and  it  is  but  a 
few  years  since  young  Kennedy  perished  at  the 
court-house  door  in  Carlisle,  claiming  his  pro- 
perty by  the  legal  process  of  the  law.  This  in- 
cident, gentlemen,  followed  at  last  by  the  melan- 
choly death  of  Mr.  Edward  Gorsuch,  have  in- 
flamed the  public  mind  of  Maryland,  (not  to  seek 
a  victim  by  shedding  innocent  blood,)  but  to  see 
if  she  cannot  come  here,  and  in  friendly,  but 
courageous  communion,  with  her  mightier  sister 
Pennsylvania,  consider  whether  this  evil  is 
to  continue  for  all  lime.      This  is  a  wide- 


UNITED  STATES  V.  HAJKTWAY 


191 


spread  feeling  among  us.  Public  meetings  hare 
been  convened,  and  there  is  perfect  unanimity 
of  sentiment  in  our  State,  through  the  length  and 
breadth  of  her  borders,  upon  this  subject.  We 
all  believe  that  our  citizens  have  a  right  to  come 
into  Pennsylvania,  and,  that  you  have  plighted 
your  word  and  honor,  that  this  fugitive  property 
shall  be  surrendered  on  claim.  There  is  a  feeling 
in  my  State,  that  no  Marylander  is  safe  in 
coming  here  for  the  purpose  of  capturing  his 
property  ;  and  these  public  meetings,  expressing 
the  unanimous  sentiment  of  the  people  of  Mary- 
land, have  compelled  her  Executive  to  act  in 
obedience  to  that  public  sentiment.  And  not 
by  my  own  seeking,  or  by  my  own  personal 
wishes  am  I  here,  gentlemen,  on  this  day,  but  in 
obedience  to  the  high  behest  of  our  patriotic 
Governor,  did  I  apply  to  the  learned  District 
Attorney  of  the  United  States,  (Mr.  Ashmead,) 
for  permission  to  appear  in  this  case.  It  has 
been  said  in  the  prints  of  your  city,  that  I  sought 
to  come  here  to  supersede  that  learned  officer 
before  you.  Allusion  has  also  been  made  in  the 
opening  speech  of  the  counsel  for  the  defence, 
that  the  learned  District  Attorney  for  the  United 
States  is  in  the  back  ground.  Gentlemen.  I  do 
not  see  how  or  why  those  assertions  were  made 
on  the  part  of  counsel.  I  very  much  mistake 
the  matter,  if  the  learned  District  Attorney  for 
the  United  States,  desired  any  such  defence  at 
the  hands  of  the  counsel  for  the  defendant.  He 
is  fully  competent,  I  presume,  to  vindicate  his 
own  dignity  and  position.  I  can  only  say  to 
you,  gentlemen,  that  it  is  untrue,  that  I  have 
ever  sought,  or  that  Maryland  ever  sought  the 
position  of  leading  or  controlling  counsel  in  this 
case  ;  wholly  false,  upon  my  honor,  I  utter  it. 
There  was  an  unfortunate  question  of  etiquette 
between  the  learned  gentleman  and  myself,  which, 
I  am  happy  to  say,  upon  my  arrival  in  this  city, 
was  fairly  and  honorably  adjusted  between  us : 
and  I  consider  myself  and  my  colleague,  (Mr. 
Cooper,)  this  day  in  this  cause,  not  as  the  ex- 
clusive counsel  of  Maryland  alone,  but  here  by 
the  sanction  of  the  general  Government ;  here  in 
the  name  of,  and  upon  the  responsibility  of  the 
general  Government.  Is  it  not  strange  ?  Is  it 
not  unprecedented  ?  Is  is  not  irregular  that 
counsel  for  the  defence  should  look  into  these 
family  dissensions  and  jarrings,  if  any  there  be. 
But  we  will  not  retaliate  and  inquire,  how  it  is  that 
there  is  such  an  array  of  counsel  for  the  prisoner, 
and  who  and  what  interests  are  represented  on 
their  side.  We  would  not  so  recriminate  if  we  could. 
Why  does  the  State  of  Maryland  desire  repre- 
sentatives here  ?  For  the  peace  and  harmony  of 
these  two  border  States.  Suppose,  in  the  inflamed 
and  excited  feeling  of  Maryland,  without  a  re- 
presentative here,  and  without  one  of  her  own 
citizens  here  officially  to  investigate  the  facts, 
and  report  the  history,  progress  and  result  of 
this  trial — she  merely  saw  a  verdict  of  acquittal, 
deriving  all  her  knowledge  from  the  public  prints, 
would  that  satisfy  the  public  sentiment  of  the 
State  of  Maryland  ?  Would  she  take  the  mere 
report  of  the  trial  in  the  public  newspapers  of 
Philadelphia  ?  It  might  be  the  fairest,  the  most 
just  and  honorable  acquittal  of  this  man  in  the 


world ;  and  yet  Maryland  would  not  know  it, 
and  could  not  believe  it.  Is  it  not  right  and 
proper  therefore,  that  she  should  have  coun- 
sel here  for  the  purpose  of  taking  part  in  this 
trial,  for  the  purpose  of  sifting  this  evidence, 
(upon  their  high  responsibility  and  position,) 
and  then  reporting  the  facts  to  their  constitu- 
ency I  can  only  say,  speaking  for  myself,  and 
doubtless,  for  the  equally  pure  conscience  of  my 
colleague,  that  if  (upon  the  closing  of  this  evi- 
dence,; we  could  have  believed  that  Castner 
Hanway  stood  acquitted  of  this  indictment,  we 
would  have  been  proud  to  proclaim  the  fact  of 
his  innocence.  What  does  the  State  of  Mary- 
land care  for  the  individual  destiny  of  that  man  ? 
Has  that  great  community,  has  she  nothing  to 
occupy  her  thoughts  and  her  feelings,  but  the 
desire  to  thirst  for  the  blood  of  an  innocent 
man  ? 

No,  gentlemen,  such  a  charge  and  imputation 
made,  wherever  it  may  be,  upon  the  State  of 
Maryland,  whose  escutcheon  I  am  compelled  this 
day  to  hold  aloft,  untarnished  and  unsullied, 
such  imputations  upon  her  honor  and  good 
name,  I  pronounce  to  be  libellous.  She  thirsts 
for  no  innocent  blood.  She  does,  desire  to  see 
justice  done  to  her  citizens.  Not  only  as  an  act  of 
justice  to  their  memory  when  murdered,  but  as  an 
act  of  protection  in  future  to  others  now  living. 
Gentlemen,  I  did  not  think  that  the  appearance 
of  the  State  of  Maryland  here,  by  counsel,  acting 
with  the  sanction  of  the  general  Government, 
and  under  the  control  at  all  times. of  the  counsel 
of  the  United  States,  I  did  not  suppose,  that  the 
appearance  of  my  State  here  by  counsel,  would 
be  the  signal  for  excitement  and  denunciation. 
I  did  not  suppose  that  my  State  coming  here  to 
reason  this  matter  as  friend  to  friend,  and  sister 
to  sister,  would  be  met  by  any  such  insults. 
And  for  what?  for  what?  Is  it  necessary  for 
the  purpose  of  the  defence  that  this  should 
be  done  ?  Is  it  necessary  or  proper  to  get  up 
collateral  issues  here  merely  to  influence  and 
mislead  your  verdict?  Not  at  all.  Are  you, 
gentlemen,  not  competent  as  jurors?  Are  you 
not  competent  to  see  when  the  State  of  Mary- 
land or  the  counsel  for  the  United  States, 
may  desire  to  press  a  prosecution  unjustly  ?  Is 
there  not  reliance  enough  in  your  intelligence 
and  impartiality  to  shield  this  prisoner  from  per- 
secution, without  having  this  eternal  cry,  this 
systematic  shout  in  your  ears,  that  the  State  of 
Maryland  is  here  thirsting  for  blood?  Why 
try  this  cause,  not  upon  the  merits  of  Castner 
Hanway,  but  on  something  else,  foreign  and  col- 
lateral to  those  merits  ?  Why  do  all  this  if 
there  is  conscious  innocence  here  ?  Gentle- 
men, it  is  the  part  of  skillful  and  ingenious 
counsel,  pressed  by  the  merits  of  a  prosecution, 
to  get  up  these  collateral  issues,  and  to  appeal 
to  the  prejudices  of  an  excited  jury,  if  suscep- 
tible of  such  prejudices,  to  acquit  a  party  by 
some  extraneous  considerations,  rather  than  by 
the  evidence  and  merits  of  the  cause.  Now, 
suppose  the  State  of  Maryland  could  sully  her- 
self with  the  disgrace  of  coming  here,  in  the  face 
of  an  overwhelming  defence,  in  the  face  of  most 
convincing  evidence,  and  that  she  should  claim  his 


192 


TREASON  CASES. 


blood  because  she  thirsted  for  it,  about  which  I 
shall  again  have  something  to  say  before  I  con- 
clude, are  you  not  competent  to  decide  that  ?  Are 
you  not  competent  to  understand  that,  without 
these  repeated  warnings  rung  in  your  ears  ? 
But,  suppose  the  party  is  guilty,  is  he  to  be 
acquitted,  even  if  the  State  of  Maryland  thirsted 
for  his  blood?  Whether  she  is  here  rightfully  or 
wrongfully,  is  that  to  make  the  man  less  guilty  ? 
The  witnesses  less  credible  ?  The  truth  less  mani- 
fest ?  Not  at  all.  Strike  out  and  reject  all  these 
extraneous  considerations,  and  all  these  artful 
appeals  to  your  passions  and  prejudices.  It  is, 
after  all,  one  single  issue,  which  in  the  sight 
of  a  heart-searching  God  and  your  country, 
you  are  to  try.  Allow  me  before  proceeding  to 
discuss  the  legal  merits  of  this  case,  to  depict 
for  one  moment  the  condition  of  the  South. — 
Originally,  (upon  the  "Declaration  of  Independ- 
ence,") I  believe  slavery  prevailed  in  all  (or 
nearly  all)  of  these  States.  The  original  taint 
of  slavery  (if  it  be  a  taint)  rests  upon  the  es- 
cutcheon of  every  one  of  the  old  thirteen  States. 
It  was  your  fortune  and  the  fortune  of  your  more 
Northern  sisters,  (owing  to  the  accidental  fact 
that  you  had  but  few  slaves  comparatively  in 
your  borders)  I  say  it  was  your  fortune  to  eradi- 
cate from  your  institutions  that  cf  Slavery. 

The  Act  of  1780,  which  has  been  referred  to, 
I  believe  is  at  the  foundation  of  the  anti-slavery 
system  of  Pennsylvania.  When  was  that  Act 
passed  ?  Passed  before  the  adoption  of  the  pre- 
sent Constitution.  Passed,  in  the  language  of  the 
counsel,  when  the  State  of  Pennsylvania  was 
independent.  When  she  was  only  associated  in 
the  articles  of  the  confederation,  and  not  associ- 
ated in  that  closer  and  more  intimate  and  bind- 
ing relation  in  which  she  now  stands  to  Mary- 
land and  other  States  of  this  Union.  What,  I 
say,  is  the  condition  of  the  South  ?  Not  able  to 
emancipate  her  slaves,  because  she  had  not 
the  opportunity  that  you  and  the  Northern 
States  had  from  the  paucity  of  the  number 
of  your  slaves.  Not  able,  if  the  South  had 
desired  it.  Could  she  have  liberated  her 
multitudinous  slaves?  But  do  not  understand 
me  as  arguing  the  abstract  question  whether 
slavery  is  right  or  wrong  ;  for  we  of  the  South  do 
not  argue  such  questions  out  of  our  own  borders. 
But  I  say,  look  at  the  facts.  Are  the  people  of 
the  South  to  emancipate  those  of  a  hostile  caste  ? 
With  this  African  caste  there  can  be  no  social 
and  practical  amalgamation,  except  by  a  few 
degraded  people.  What  is  to  become  of  them  ? 
Are  they  to  be  turned  free,  and  as  paupers  to 
wander  through  our  land  ?  You  have  compara- 
tively few,  and  you  do  not  feel  the  evil  of  having 
a  free-colored  population  as  the  South  does  : 
where  they  are  vastly  more  numerous  in  propor- 
tion to  the  white  population  than  they  are  here. 
The  State  of  Maryland  has  nearly  as  many  free 
colored  people  and  slaves,  as  she  has  white  citi- 
zens. We  have  not  the  wealth  and  treasure  to 
export  them  beyond  our  borders.  Where  should 
we  carry  them  ?  Would  you  receive  them  ? 
Would  you  suifer  your  borders  to  be  flooded  with 
an  irruption  of  all  the  colored  people  of  the  State 
of  Maryland  alone,  much  less  of  the  entire  South? 


Certainly  not.  Nor  have  we  wealth  or  means  to 
send  them  back  to  Africa.  Do  you  expect  us,  by 
preaching  abolition,  to  turn  loose  this  nume- 
rous and  dangerous  class  in  our  midst,  with 
whom  we  cannot  either  socially  or  politically 
amalgamate?  Preach  it  as  you  will,  contend  for 
it  as  you  will,  we  will  not,  and  we  cannot.  It  is 
worse  further  South.  There  the  evil  would  be 
greater  in  proportion.  In  the  extreme  Southern 
States  it  is  in  the  proportion  of  nearly  three  blacks 
to  one  white  man.  I  need  not  give  you  statistics 
upon  that  subject,  none  can  dispute  it.  If  there- 
fore you  of  the  North  consider  this  an  evil,  then 
before  you  seek  to  abolish  slavery  in  the  South, 
in  the  name  of  God,  invent  a  remedy  and  tell  us 
how  we  are  to  get  rid  of  this  supposed  evil !  It 
will  not  be  by  emancipation.  It  must  be  by  ex- 
portation, and  where  is  the  treasure  with  which 
it  is  to  be  clone  ?  But  as  I  said,  we  do  not  argue 
these  abstract  questions  out  of  the  limits  of  our 
States.  Gentlemen,  you  of  the  North  have  no 
right  to  ask  us  to  emancipate  our  slaves.  You 
would  have  as  much  right  to  go  into  the  house  of 
your  neighbor,  and  pry  into  his  domestic  affairs, 
and  tell  him  how  he  ought  to  regulate  the  vari- 
ous departments  of  his  family;  and  I  have  no  doubt 
if  you  were  to  do  so  with  one  of  your  neighbors 
you  would  be  ordered  out  of  the  door,  and  very 
justly  too.  I  will  presently  show  you,  that  you, 
the  people  of  Pennsylvania,  have  solemnly  plight- 
ed your  word,  your  moral  character,  and  your 
honors,  to  the  protection  of  this  property.  How 
have  you  done  it  ? 

In  1780,  and  before  the  adoption  of  the  present 
Constitution,  you  had  a  right  to  say  what  you 
pleased,  and  emancipate  every  slave  who  might 
come  into  your  borders,  whether  fugitive  or  not. 
Because  you  were  then  an  independent  sovereign 
State,  having  an  exclusive  jurisdiction,  and  not 
trammelled  by  any  thing  except  the  old  articles 
of  confederation,  which  were  silent  on  this  whole 
subject.  What  did  you  do?  You  adopted  the 
present  National  Constitution.  How  did  you 
adopt  it?  By  compromise;  by  mutual  con- 
cessions. There  were  many  things  in  that  Con- 
stitution which  the  South  did  not  like,  and  there 
were  many  things  which  the  North  did  not 
like  ;  and  yet,  by  a  mutual  surrender,  by  a  com- 
mon offering  upon  the  common  altar  of  patriotism 
and  the  American  Union,  all  differences,  all  ani- 
mosities, and  all  heart-burnings  were  buried,  it 
was  supposed,  for  ever.  What  are  the  stipula- 
tions of  that  Constitution?  Why,  that  we  of  the 
South,  most  vitally  interested  in  slave  property, 
especially  in  some  of  the  Southern  States,  where 
heat  renders  it  impossible  for  white  men  to  la- 
bor beneath  the  burning  sun,  we  incur  certain 
duties.  We,  of  the  South,  agree  on  our  part  that 
we  would  give  to  Congress  the  power  to  prevent 
the  importation  of  slaves  into  the  United  States 
from  Africa  ;  in  other  words,  to  abolish  the  slave 
trade.  We  agreed  to  abandon  that.  And  that 
obligation  on  our  part  has  been  in  good  faith  car- 
ried out.  There  is  no  southern  statesman  or  State, 
that  does  not  execute  the  bond  and  stipulation 
on  their  part.  What  was  the  counter  stipulation  ? 
Why,  that  you,  of  the  North,  you  of  the  non- 
slavenolding  States,  bound  yourselves,  as  sepa- 


UNITED  STATES  V.  HAWAY. 


103 


parate  communities,  that  the  master  should  have 
his  fugitive  slave  surrendered  to  him  upon  claim 
being  made.  And  when  you  adopted  that  Con- 
stitution, in  common  with  the  other  States,  you 
gave  your  solemn  pledge  that  this  thing  should 
be  done.  Now,  what  becomes  of  the  moral  view 
of  this  question  ?  Is  it  not  a  question  of  con- 
tract ?  Have  you  not  made  the  contract,  and 
have  you  a  right  to  observe  one  part  of  the  con- 
tract, which  benefits  you.  to  the  exclusion  of 
the  other  part  of  the  contract  ?  I  will  show  you, 
gentlemen,  bv  the  decision  of  the  Supreme  Court 


might  be  expounded  by  the  supreme  tribunal  of  the 
country.  The  legislature  passed  a  law,  and  in- 
structed her  Attorney-General  to  appear  before 
the  Supreme  Court  and  argue  these  questions. 
The  case  was  between  a  citizen  of  Maryland  and 
the  Commonwealth  of  Pennsylvania.  It  was 
upon  an  indictment  preferred  against  a  citizen  of 
Maryland  for  having  been  guilty  of  a  crime  in 
taking  his  slaves  against  State  laws;  and  this 
your  State  submitted  to  the  decision  of  that  high 
tribunal.  You  went  before  the  constitutional 
tribunal  to  draw  from  the  verv  fountain  of  the 


of  the  United  States,  a  decision  of  the  highest  law  the  true  construction  of  that  sacred  instru- 
court  in  the  land,  speaking  through  Judge  Story,  ment.  "What  was  the  answer  of  that  tribunal  of 
himself  a  Northern  judge,  that  this  Union  never  your  own  selection  ?  It  was  in  the  words  of 
could  have  been  formed,  without  the  adoption  of  Judge  Story,  who  delivered  the  opinion  of  the 

Court  in  these  words:  I  read  from  page  611  : 
"  There  are  two  clauses  in  the  Constitution 
upon  the  subject  of  fugitives,  which  stand  in 


the  clause  for  the  surrender  of  fugitive  slaves  ; 
that  "it  was  a  fundamental  article,  without 
which,  as  an  historical  fact,  the  Union  never 


could  have  been  formed.*'    For  us  the  solemn  juxtaposition  with  each  other,  and  have  been 


inquiry  remains,  whether  that  Union  which  could 
not  have  been  formed  without  the  adoption  of 
this  fundamental  article,  can  be  now  maintained 
without  its  religious  and  honest  enforcement. 
Why,  suppose,  gentlemen, — and  the  law  which 
applies  to  nations  or  to  political  communities  as 
a  moral  law,  cannot  be  different  from  that  apply- 
ing to  individuals, — suppose  two  of  you  make  a 
contract  in  which  there  are  mutual  stipulations, 
one  party  has  his  obligations  to  perform,  and  the 
other  party  has  his  obligations  ;  and  what  would 
vou  sav  of  the  honestv  of  that  one  who  bavins 


thought  mutually  to  illustrate  each  other. 
They  are  both  contained  in  the  second  sec- 
tion of  the  fourth  article,  and  are  in  the  fol- 
lowing words  :  '  A  person  charged  in  *  any 
State  with  treason,  felony,  or  other  crime,  who 
shall  flee  from  justice,  and  be  found  in  another 
State,  shall,  on  demand  of  the  executive  autho- 
rity of  the  State  from  which  he  fled,  be  delivered 
up,  to  be  removed  to  the  State  having  jurisdic- 
tion of  the  crime.' 

•'  No  person  held  to  service  or  labor  in  one 
tate,  under  the  laws  thereof,  escaping  into  an- 


znade  this  contract,  should,  because  he  did  not  other,  shall  in  consequence  of  any  law  or  regula- 


like  the  stipulations  upon  his  part  to  be  per- 
formed, set  up  a  higher  law  than  the  law  of  the 
contract,  and  say,  1 '  I  am  absolved  iD  my  con- 
science from  this  part  of  it and  yet  these  doc- 
trines are  preached  through  your  borders,  and 
in  this  very  court-room,  by  individuals  who,  I 
am  proud  to  say,  are  not  a  majority  of  your  citi- 
zens :  and  I  do  believe,  that  a  large  majority  of  the 


tion  therein,  be  discharged  from  such  service  or 
labor ;  but  shall  be  delivered  up,  on  claim  of  the 
party  to  whom  such  service  or  labor  may  be 
due,' 

••  The  last  clause  is  that,  the  true  interpretation 
whereof  is  'directly  in  judgment  before  us.  His- 
torically, it  is  well  known,  that  the  object  of  this 
clause  was  to  secure  to  the  citizens  of  the  slave- 


people  of  Pennsylvania  are,  in  sentiment,  at  least,   holding  States  the  complete  right  and  title  of 

ownership  in  their  slaves,  as  property,  in  every 
State  of  the  Union  into  which  they  might  escape 
from  the  State  where  they  were  held  in  servitude. 
The  full  recognition  of  this  right  and  title  was 
indispensable  to  the  security  of  this  species  of 
property  in  all  the  slave-holding  States  ;  and,  in- 
deed, was  so  vital  to  the  preservation  of  their 
domestic  interests  and  constitutions,  that  it  cannot 
be  doubted  that  it  constituted  a  fundamental  arti- 
cle, without  the  adoption  of  which  the  Union 


sound  upon  this  subject,  and  opposed  to  these 
doctrines  of  the  rights  of  conscience  as  against  a 
solemn  contract  entered  into  by  your  forefathers, 
and  assented  to  by  you,  as  their  successors. 
Why,  gentlemen,  unless  every  man  has  the  right 
to  sit  in  judgment  over  the  legislation  of  govern- 
ment, and  over  and  above  the  clauses  of  the  Con- 
stitution :  unless  this  can  be  made  out,  no  man 
has  a  right  to  set  up  his  conscience,  and  say  he 
will  execute  just  such  laws  as  he  chooses,  and  re- 
pudiate those  he  dislikes.    If  there  be  such  bad  could  not  have  been  formed 


citizens  anions*  you,  it  is  their  first  duty  to  get 
rid  of  the  Union  itself :  and  if  they  cannot  do 
that,  let  them,  at  least,  fly  to  some  other  land, 
and  there  preach  those  higher  law  sentiments  ; 
that  they  can  do,  at  least,  without  remaining 
here,  to  sow  the  bitter  seeds  which  bring  forth 
blood  and  massacre,  and  may,  at  some  future 
day,  end  in  civil  war  itself. 

Now  I  will  show  you,  gentlemen,  what  I  stated 
to  be  the  law.  It  is  the  decision  of  the  Supreme 
Court  of  the  United  States,  in  Prigg  p.  the  State 
of  Pennsylvania,  reported  in  16  Peters,  wnere 
the  Commonwealth  of  Pennsylvania,  through  its 
legislature,  submitted  these  questions  to  the  Su- 
preme Court  of  the  United  States,  that  they 


25 


There  is  the  Constitution,  the  organic  law 
which  rides  over  the  legislation  of  Congress 
when  inconsistent,  and  which  rides  over  State 
constitutions  and  State  legislation  :  and  it  is  upon 
that  fundamental  law  that  southern  property  re- 
poses with  entire  confidence.  There  the  people  of 
Pennsylvania,  in  the  words  of  the  Constitution, 
have  solemnly  pledged  themselves,  as  parties  to 
that  compact,  "  that  a  fugitive  from  labor,  or  ser- 
vice, shall  be  delivered  up,  on  claim  of  the  party 
to  whom  such  service  or  labor  may  be  due." 
Before  I  read  what  the  Court  say  in  regard  to 
to  this  matter,  let  me  pause,  and  inquire  what  is 
the  obligation  which  the  northern  States  have 
assumed.    Is  it,  as  was  contended  by  Mr.  Lewis 


194 


TREASON  CASES. 


to-day,  merely  an  obligation  to  allow  the  owner 
of  the  slave  to  come  and  capture  with  his  own 
hand  his  slave,  and  that  the  citizens  of  Pennsyl- 
vania have  a  right  to  be  passive  and  stand  by, 
and  not  assist;  that  the  Southern  master  must 
come  here,  and  with  his  own  hand  capture  his 
slave  ?  No,  gentlemen  ;  I  say,  according  to  the 
letter  and  the  spirit  of  the  Constitution,  all  that 
was  designed  at  the  time,  however  it  has  been 
perverted  since,  manifestly  appears  in  the  plain 
language  of  the  article.  It  is  this,  that  the  owner 
of  the  fugitive  from  labor,  may  simply  make  his 
claim,  and  upon  that  claim  the  people  of  the  north 
have  bound  themselves  to  deliver  up  the  fugitive. 
The  words  are,  "  shall  be  delivered  up."  Who  is  to 
deliver  him  up  ?  The  people  of  the  North ;  the 
people  of  Pennsylvania,  when  he  is  found  in  your 
State.  Whenever  a  master  shall  come  here 
claiming  his  slave,  you  bind  yourselves  to  de- 
liver him  up.  The  master  has  a  right  to  call 
upon  the  State  and  the  people  of  Pennsylvania, 
as  loyal  citizens  to  the  Constitution  and  Laws  of 
the  United  States,  as  bound,  whenever  requested, 
to  assist  him ;  and  to  deliver  up  the  slave. 
The  Supreme  Court  in  further  exposition  of 
that  clause  say  that,  "according  to  the  Con- 
stitution, the  master  has  a  right  to  come  into 
this  State  without  process,  without  legislation 
on  the  part  of  Congress,  and  capture  with  his 
own  hand,  his  slave,  wherever  he  meets  him, 
provided  he  can  do  it  without  a  breach  of  the 
peace,  or  illegal  violence."  Now,  I  merely  refer 
to  this  clause  of  the  Constitution  to  show  that  it 
binds  the  citizens  of  Pennsylvania,  and  of  every 
northern  State,  to  some  active  duly  ;  it  prohibits 
them  from  being  passive,  and  binds  them,  as 
loyal  citizens  of  Pennsylvania,  respecting  the 
Federal  Constitution,  to  deliver  up  the  fugitive 
to  his  master ;  especially  when  he  comes  fortified 
with  process  issued  under  an  Act  of  the  United 
States. 

Here,  then,  is  the  solemn  decision  of  the  Su- 
preme Court  of  the  United  States,  that  this  sur- 
render of  fugitive  slaves  constituted  a  funda- 
mental article,  without  the  adoption  of  which, 
the  Union  could  not  have  been  formed.  Its  true 
design  was  to  guard  against  the  doctrines  and 
principles  now  promulgated  on  this  trial.  Now, 
gentlemen,  that  was  the  first  great  compromise 
upon  this  question — a  compromise  in  the  Consti- 
tution itself — and  I  call  upon  you  and  upon 
the  counsel  who  will  follow  me  on  behalf  of  the 
defence,  to  point  out  the  instance  where  the 
Southern  States,  and  least  of  all,  the  State  of 
Maryland,  have  been  recreant  to  the  stipulations 
of  the  Constitution  in  any  particular,  so  far  as 
these  obligations  rest  upon  them  or  her.  Then 
the  State  of  Maryland  presents  herself  here  with 
a  clear  conscience,  has  she  not  a  right  to  ask  the 
people  of  Pennsylvania  to  do  unto  her  as  she  has 
done  unto  them  ?  Has  she  not  a  right  to  call 
upon  you  by  every  consideration  of  a  common 
country  and  Constitution,  by  every  moral  appeal, 
by  every  appeal  to  your  honesty  itself,  to  execute 
this  contract !  We  desire  it,  gentlemen,  not  as  a 
legal  abstraction  on  the  Statute  Book — not  as  a 
mere  moral  principle  in  the  Constitution — but  we 
desire  the  enforcement  of  that  Article  as  an  ac- 


tive, living,  practical  right.  We  desire,  and  we 
say  it  in  all  friendship  and  in  all  candor  that 
our  citizens  shall  come  into  Pennsylvania  as 
long  as  this  Union  lasts — as  long  as  this  Consti- 
tution remains  unaltered  and  unrepealed — shall 
come  into  your  State  and  be  enabled  to  capture 
their  property,  and  that  it  shall  be  delivered  to 
them  upon  their  claim  being  made ;  and  more 
especially,  that  the  citizens  of  Maryland,  who  come 
here  to  carry  out  this  law,  shall  not  be  savagely 
butchered.  That  is  one  issue.  But  in  carrying 
out  that  desire — in  protecting  our  own  citizens 
from  that  lawless  and  wicked  faction,  that  would 
unsheath  the  sword  of  civil  war ;  the  State  of 
Maryland  does  not  desire  that  this  man  should 
be  offered  as  a  victim  if  innocent — that  is  another 
issue.  I  just  now  expressed  it  as  my  belief,  that 
a  vast  majority  of  your  people  are  in  sentiment 
sound  upon  this  great  question ;  but,  gentlemen, 
again  I  say  it  must  be  a  practical  question.  Of 
what  avail  is  it  to  us  at  the  South,  to  know  that 
a  majority  of  the  people  of  Pennsylvania,  if  it 
were  submitted  at  the  ballot-box,  are  in  favor  of 
respecting  and  executing  the  Constitution  and 
laws  of  the  land,  if  a  small  and  miserable  and 
traitorous  faction  can  resist  and  annul  the  laws 
of  the  United  States — if  they  are  so  active,  so 
mischievous,  so  destructive,  though  in  the  mino- 
rity, that  they  can  nullify  the  will  of  the  majority, 
and  practically  overthrow  and  defeat  the  process 
of  the  United  States,  what  value  is  it  to  us  to 
know  that  their  course  is  not  approved  by  a 
majority  of  the  people?  Put  down  these  fac- 
tions, overwhelm  them  with  shame,  disgrace 
and  ruin,  or  you  are  not  good  citizens  ful- 
filling the  bonds  that  bind  you  to  us  of  the 
South.  Why,  gentlemen,  the  counsel  who  spoke 
to-day,  says,  that  the  time  will  come  when  the 
South  will  herself  desire  to  see  the  repeal  of  all 
those  laws  for  the  delivery  of  fugitive  slaves; 
and  that  she  will  desire  it,  because  the  slave  who 
has  once  tasted  the  sweets  of  liberty  and  returned 
to  bondage,  will  preach  liberty  to  his  fellow-slaves 
of  the  South. 

"  Sufficient  to  the  day  is  the  evil  thereof.'* 

When  the  South  is  satisfied  that  it  is  her  true 
policy,  she  will  say  so,  and  in  the  mean  time 
she  stands  indebted  to  the  gentleman  for  the 
advice  he  has  given  to  her.  We  will  judge  for 
ourselves,  and  as  long  as  we  claim  our  rights,  no 
one  has  a  right  to  object  that  we  do  not  know 
our  true  policy.  I  tell  the  counsel  that  the  con- 
trary is  the  result.  I  say  this  very  fact  of  in- 
ticing  and  seducing  slaves  to  escape  from 
bondage  to  free  States,  and  the  struggles  that 
we  of  the  South  have  made  to  recapture  our 
property,  has  retarded  and  put  back  that  pro- 
cess of  gradual  emancipation  which  was  going  on 
some  twenty  years  ago  in  the  middle  States  of 
the  Union.  Young  as  I  am,  I  can  recollect  the 
time,  when  leading  men  in  Virginia  and  Mary- 
land, openly  declared  the  doctrine  that  in  those 
States  not  too  far  South,  and  where  the  white 
man  could  labor  in  the  open  fields,  beneath  the 
summer's  sun,  there  should  be,  if  practicable,  a 
gradual  emancipation  of  the  slaves.  And  I  can 
point  to  the  debates  of  the  Virginia  Convention, 


UNITED  STATES  V.  HANWAf. 


195 


of  1830  and  '81,  as  a  proof  of  the  fact.  This 
resistance  to  the  rights  of  the  South,  what  has  it 
done  ?  Where  is  the  man  now  at  the  South, 
•who  dares,  and  I  say  it  boldly,  to  preach  such 
doctrines  ?  No,  the  very  effort  to  force  this 
thing  upon  the  South,  has  retarded  and  re- 
versed the  progress  of  public  opinion.  Instead 
of  doing  good  to  the  slaves,  so  far  as  emancipa- 
tion is  concerned,  it  has  hindered  it,  until  there 
is  a  wide-spread  conviction  in  all  the  South,  that 
no  living  man  will  ever  see  the  day  when  sla- 
very will  be  abolished.  Who  have  the  slaves  to 
thank  for  this,  but  tbeir  wicked  friends  and 
sympathizers  at  the  North.  Well  may  they  say 
as  General  Jackson  used  to  say,  "  save  me  from 
my  friends,  and  I  can  take  care  of  my  enemies." 
That,  gentlemen,  has  been  the  result;  and  when 
we  are  satisfied  that  we  ought  not  to  compel  or 
ask  for  the  execution  of  the  guarantees  of  the 
Constitution,,  because  it  is  better  to  let  our 
slaves  escape  by  hundreds  and  thousands,  and 
then  not  reduce  them  to  slavery  again,  because 
they  would  sow  the  seeds  of  insurrection  and 
servile  war — we  will  adopt  the  advice  of  the 
counsel,  and  not  till  then. 

Now,  as  to  the  danger  to  the  Union — I  do  not 
come  here  to  proclaim  it — I  have  no  authority 
from  the  people  of  Maryland,  to  speak  for  them 
upon  so  grave  a  question.  I  do  not  come  here  to 
say  that  the  Union  depends  upon  your  verdict ; 
nor  to  say  that  the  Union  is  involved  in  the  issue 
of  this  trial.  I  do  not  believe  that  any  one 
event,  that  may  be  the  event  of  a  single  day,  or 
a  single  week,  or  a  single  month,  can  dissolve 
this  Union  as  it  now  stands.  But  I  do  believe, 
that  you  can  snap  and  rend  asunder,  one  by  one, 
the  cords  which  bind  it  together  ;  and,  I  believe, 
that  from  the  very  doctrines  that  have  been 
preached  and  acted  upon,  by  a  portion  of  the 
people  of  the  North,  and  the  ultra-agitators  of 
the  South,  I  do  believe  the  edifice  of  the  Union, 
if  not  undermined,  is  at  least  not  now,  resting  on 
as  solid  and  substantial  a  foundation,  as  it  was 
before  the  agitation  of  this  question.  Already 
have  we  seen  that  even  the  churches  which  were 
harmonious  at  the  North  and  South — already 
have  we  seen  that  in  matters  of  religion,  there 
has  been  a  sectional  line  drawn  by  this  question, 
and  churches  have  been  divided.  This  is  the 
very  question  against  which  Washington  warned 
the  people,  "  to  frown  down  every  attempt  at 
sectional  strife  and  agitation  ;"  and,  certain  it  is, 
if  the  people  of  Maryland,  shall  believe  that  a 
depraved  public  opinion  in  your  State,  has  pre- 
vented the  vindication  of  the  blood  of  one  of  her 
innocent  citizens,  murdered  upon  your  soil — that 
this  vindication  has  been  put  off  by  the  mere  forms 
and  delusive  ceremonies  of  a  triai ;  by  merely 
summoning  and  impannelling  a  jury.  If  the 
people  of  Maryland  shall  believe,  that  no  citizen 
of  that  State  can  follow  his  property  into  Penn- 
sylvania, except  at  the  peril  of  his  life,  and  that 
when  that  is  taken,  no  justice  can  be  done  to 
his  memory — no  vindication  of  the  laws  of  the 
United  States.  Certain  it  is,  that  the  moral 
charm  is  gone,  and  there  cannot  be  that  brother- 
hood of  feeling  and  kindness  of  association, 
which  has  always  characterized  the  people  of 


Pennsylvania  and  Maryland.     I .  am  happy  to 
say,  that  although  we  are  border  States,  and 
have  had  cause  enough  to  produce  fierce  and 
bitter    animosity,   yet,  a   kindly  feeling  has 
always  prevailed ;  and  I  defy  any  one,  to  show  a 
i  citizen  of  your  State  coming  into  Maryland,  who 
j  has  ever  been  treated  with  any  thing  but  hospi- 
]  tality  and  friendship. 

But,  gentlemen,  I  pass  from  this  consideration, 
and  I  pass  from  the  solemn  bond  and  covenant 
which  your  great  forefathers  entered  into,  and 
which  binds  you  in  common  honesty  as  religiously 
as  if  you  had  with  your  own  hands  and  seals  ac- 
cepted it;  because  you  are  the  descendants  of 
those  forefathers,  and  you  are  enjoying  the 
blessings  which  that  contract  has  procured  for 
you. 

You  are  enjoying  the  blessings  of  this  Union  ; 
daily  and  hourly  enjoying  them,  and  you 
are  a  party  to  the  obligations  and  stipulations 
by  which  they  were  procured ;  therefore  I  say 
that  you  are  bound  morally,  legally  and  politi- 
cally by  every  one  of  its  ties,  and  you  will  with 
pride  and  pleasure,  I  trust,  enforce  them.  You 
will  consider  that  without  this  stipulation,  in 
the  language  of  Judge  Story,  "we  should  have 
had  no  Union" — no  star-spangled  banner  to  float 
in  triumph  over  every  wave.  We  should  have 
had  no  broad  and  renowned  land  ;  stretching  from 
the  shores  of  the  Atlantic  to  the  Pacific  ocean. 
We  should  have  had  no  beacon  lights,  shining  from 
every  mountain  top,  to  give  light  to  the  oppressed 
of  other  nations,  and  to  guide  them  to  peace, 
happiness,  and  freedom.  These  things  never 
would  have  been  and  cannot  now  be  preserved 
and  maintained  without  a  religious,  an  honest,  and 
faithful  execution  of  all  the  covenants  binding  the 
several  parties  together.  So  long  as  you  have  a 
general  government,  that  government  is  there  for 
the  purpose  of  enforcing  the  Constitution  of  the 
United  States.  And  until  you  by  treason,  shall 
conquer  and  subdue  that  general  government  to 
your  own  ends  and  purposes,  so  long,  I  say,  you 
cannot  resist  the  stipulations  and  obligations  of 
that  Constitution  without  treason  to  the  govern- 
ment. 

Gentlemen,  what  is  the  duty  of  the  government  ? 
It  is  there  for  the  solitary  purpose  of  enforcing 
the  Constitution.  That  general  government  is 
the  arbiter  of  peace  and  war.  It  has  a  power  to 
marshal  the  whole  forces  of  the  nation  in  the  exe- 
cution of  the  laws  of  the  Union.  There  is  a  solemn 
obligation  upon  that  government  to  see  that  each 
and  every  clause  is  executed  by  force  if  necessary. 
And  it  is  recreant  to  its  obligations  if  it  fails  to 
enforce  them  in  any  particular  whatever.  That 
is  the  decision,  gentlemen,  of  the  Supreme  Court, 
in  the  same  case  decided  between  Pennsylvania  and 
Maryland,  in  regard  to  this  very  power  of  reclaim- 
ing fugitives  from  labor  in  Prigg  vs.  Pennsylva- 
nia, 16  Peters. 

In  other  words,  gentlemen,  Congress  has  the 
power,  according  to  the  decision  of  the  Supreme 
Court,  "to  exercise  the  power  of  protecting  the 
rights  of  the  owner  of  a  fugitive  slave,  and  of 
calling  it  into  activity  and  prescribing  the  mode 
of  its  exercise,  and  under  what  circumstances  it 
shall  afford  a  complete  protection  and  guarantee 


TREASON  CASES. 


to  the  right."  In  other  words,  Congress  has 
complete  jurisdiction  over  this  whole  subject. 
When  Congress  legislates  and  says  the  right  may 
be  executed  in  such  a  way,  it  is  final,  conclusive, 
and  no  State  law  can  oppose  it.  If,  therefore, 
Congress  has  legislated  upon  this  subject,  and 
said  that  the  master  shall  be  clothed  with  certain 
powers  and  process  from  the  Commissioner  of 
the  United  States,  for  the  purpose  of  capturing 
his  slave,  and  that  there  shall  be  no  resistance, 
and  that  every  good  citizen  of  the  United  States 
shall,  when  summoned,  aid  in  executing  that 
process,  I  say  it  is  binding.  It  is  binding  upon 
every  good  and  loyal  citizen;  and  no  man  has  a 
right  as  long  as  he  is  an  American  citizen  living 
under  the  "  Flag  of  our' Union,"  to  say  I  reserve 
to  myself  and  my  conscience,  the  right  of  not  as- 
sisting in  the  execution  of  this  law. 

Why,  gentlemen,  the  whole  sovereignty  of  your 
State,  the  whole  power  of  the  State  of  Pennsylva- 
nia, speaking  through  her  Legislative  Halls,  can- 
not gainsay  one  tittle  of  that  Act  of  Congress.  If 
the  Legislature  of  your  State  were  to  undertake 
to  repeal  one  letter  or  clause  of  this  "  Act  of  Con- 
gress," and  say  that  she  reserved  to  her  citizens 
the  right  to  resist  that  mandatory  clause  in  the 
Act  of  Congress  requiring  them  to  assist,  that 
act  of  Pennsylvania  would  be  unconstitutional. 
Such  is  the  decision  of  the  Supreme  Court.  I  do 
not  ask  the  conviction  of  Castner  Hanway  be- 
cause he  refuses  to  assist.  I  do  not  ask  it  upon 
such  grounds  as  this.  The  refusal  to  assist  is 
one  thing.  The  actual  conniving,  inciting,  aiding, 
and  abetting,  is  another.  But  I  only  refer  to  that 
decision  of  the  Supreme  Court  in  order  to  put 
down  and  trample  under  foot,  the  doctrine  which 
has  been  preached  by  one  of  the  witnesses  here, 
who  came  to  vindicate  the  loyalty  of  Castner 
Hanway,  and  who  said  he  was  loyal  but  reserved 
to  himself  the  right,  when  summoned  in  the  name 
of  the  United  States — the  right  of  not  assisting 
though  he  saw  an  officer  of  the  United  States 
threatened  and  menaced  with  death.  A  doctrine 
preached  from  the  witness  stand  and  echoed  by 
counsel  on  the  other  side,  Mr.  Lewis ;  who  now 
broadly  takes  the  ground  that  Castner  Hanway 
and  all  others  had  a  right  to  refuse  to  assist,  be- 
cause it  was  repugnant  to  their  consciences. 
Conscience ! 

Conscience,  gentlemen,  is  the  pretended  justi- 
fication for  an  American  citizen  to  refuse  to  exe- 
cute a  law  of  his  country,  passed  by  his  own 
representatives  in  the  Congress  of  the  United 
States.  Because,  I  say,  whether  that  representa- 
tive votes  for  the  law  or  not,  it  makes  no  differ- 
ence. He  goes  there  and  takes  his  chance  of 
getting  the  law  to  suit  his  views.  He  has  the 
privilege  of  a  voice  in  the  passage  of  every  law 
and  the  privilege  of  voting  "  aye  or  nay."  He 
professes  (and  every  man. in  the  community  pro- 
fesses) to  be  governed  by  the  majority.  If  a 
wicked  law  should  be  passed,  there  is  but  one 
remedy,  and  that  is  in  a  constitutional  way  to 
procure  its  repeal.  He  has  nothing  of  which 
to  complain ;  it  was  passed  by  a  body  in  which 
he  had  his  representative  member.  Suppose 
this  monstrous  doctrine  (for  I  call  it  mon- 
strous,) is  to  be  allowed,  what  is  the  result  ?  It 


is  that  the  general  government  has  no  power  to 
enforce  its  laws,  in  any  section  where  they  are 
unpopular,  unless  she  sends  a  regular  army  to 
accompany  her  civil  process.  She  has  not  the 
power  to  summon  a  "posse  comitatus,"  because 
the  consciences  of  the  by-standers  may  be  against 
the  law.  Then  the  general  government  would 
require  a  standing  army  ?  And  such  a  standing 
army  !  An  army  that  would  have  to  be  stationed 
in  every  town  and  county,  so  as  by  a  sufficient 
display  of  force  to  execute  the  civil  process  of 
the  United  States.  Is  that  the  sort  of  govern- 
ment we  live  under?  A  government  of  force 
and  military  terrors  ?  A  government  which  has 
no  right  to  call  upon  its  citizens  to  assist  in  the 
enforcement  of  its  constitutional  laws.  Gentle- 
men, I  have  entirely  misapprehended  the  frame 
and  structure  of  our  government  if  this  be  Ame- 
rican doctrine,  or  any  thing  else  but  damnable, 
treasonable  doctrine.  As  I  said  before,  I  do  not 
desire,  I  do  not  ask  the  conviction  of  Castner 
Hanway,  merely  because  he  refused  to  execute 
that  law,  though  it  was  a  violation  of  his  duty  as 
an  American  citizen.  Though  he  was  disloyal  to 
his  country,  though  convicted  of  being  dis  oyal 
to  his  own  country,  by  his  own  confession,  I  say, 
acquit  him  form  the  charge  of  treason,  if  he  has 
not  done  any  thing  beyond  this.  If  that  be  your 
view  of  this  evidence,  acquit  him,  and  l^t  him 
go  forth  as  a  violater  of  the  law :  a  traitor  in 
heart,  if  not  in  act.  But,  gentlemen,  I  shall,  I 
think,  when  I  come  to  review  the  powerful  com- 
bination of  crushing  testimony  in  this  cause, 
(corroborating  Kline  upon  every  material  particu- 
lar), I  think  I  shall  show  you  that  this  man,  (who 
is  here  confessed  to  be  opposed  to  this  law,  and 
to  have  refused  to  assist  the  officers  of  the  United 
States)  ;  that  this  man  did  not  confine  himself  to 
mere  sympathy  with  the  fugitive  slaves,  that  he 
did  not  occupy  the  position  of  being  merely  pas- 
sive, but  that  he  did  then  and  there  connect 
himself  with  an  organized  band,  which  had  been 
formed  there  for  treason.  But  suppose  he 
was  there  as  a  spectator,  and  that  he  there 
first  connected  himself  with  an  organization 
formed  for  the  purpose  of  resisting  the  law  ?  Is 
he  not  as  guilty  as  the  rest  ?  But  he  had  no  arms 
in  his  hands.  What  of  that  ?  The  colored  peo- 
ple then  and  there  armed  were  his  instruments 
of  war ;  they  were  his  arms ;  and  I  should  have 
thought  far  more  of  Castner  Hanway  and  Elijah 
Lewis,  if,  while  sympathizing  with  these  blacks ; 
if,  while  determined  to  nullify  and  resist  this 
law  of  Congress,  they  had  put  on  their  armor, 
and  led  their  soldiers  to  the  fight.  They  would 
have  been  heroes  in  their  way,  and  they  would 
have  resisted  the  law  plainly,  boldly,  and  openly. 
But  to  go  there,  (with  no  arms  and  weapons  on  their 
persons,)  to  incite  an  ignorant  and  infuriated 
horde,  who  are  there  for  the  purpose  of  treason, 
murder,  and  robbery ;  I  say,  this  is  less  manly, 
than  if  they  had  led  them  armed  from  head  to 
foot.  Why,  gentlemen,  did  he  go  unarmed  ? 
Because  he  fancied  himself  in  security.  He 
fancied  he  could  go  there  and  preach  treason  to 
those  men  who  stood  around  armed  and  ready  for 
their  bloody  work.  He  could  excite  them  to 
treason  and  vengeance  with  impunity.    He  knew 


UNITED  STATES  V.  HANWAY. 


197 


that  they  wanted  white  advice,  and  actually  in  the 
morning,  before  the  Gorsuch  party  had  arrived, 
they  had  sent  Clarksonto  get  white  advice,  white 
counsel,  and  whites  to  be  present.  I  say,  a  man  who 
would  do  this,  incite  them  by  speeches,  and  en- 
courage them  by  declaring  they  had  a  right  to  de- 
fend themselves,  and  if  the  law  should  be  sought 
to  be  enforced  blood  would  be  shed,  and  that  the 
officer  had  better  go  home,  is  far  guiltier  then 
the  armed  negroes.  If  you  believe  he  incited  them 
by  word,  speech,  or  gesture,  then  he  has  done  more 
than  merely  refuse  to  assist.  He  has  become  a 
conspirator.  He  has  connected  himself  with 
them,  and  all  their  acts  are  his  acts,  and  all  their 
intentions  are  his  intentions,  and  I  shall  have  no 
difficulty  in  making  that  law  out,  because  it  has 
been  adjudicated  in  this  Court. 

I  shall  argue  (in  the  first  place),  that  there  is 
overwhelming  circumstantial  evidence  to  demon- 
strate Hanway's  implication  in  the  previous  con- 
spiracy. That  it  is  not  to  be  expected  (in  a  case 
like  this)  that  direct  proof  shall  be  brought, 
where  the  whole  region  is  infected,  and  where 
every  white  man  in  that  immediate  neighbor- 
hood (with  the  exception  of  Miller  Nott),  is 
leagued  with  the  traitors.  The  whole  neigh- 
borhood were  not  only  disloyal  but  wanting 
in  common  humanity.  And  it  is  melancholy 
that  a  whole  neighborhood  should  be  thus  stig- 
matized, and  yet  there  are  facts  which  fully  jus- 
tify the  charge.  I  say  in  a  neighborhood  of  that 
kind  (with  facts  and  evidences  of  that  character, 
to  which  I  shall  refer),  it  is  not  to  be  expected 
that  we  shall  find  in  that  horde  of  traitors,  volun- 
tary witnesses  to  implicate  directly  one  who  sym- 
pathizes with  them,  and  thinks  and  feels  as  they 
do.  What,  gentlemen,  because  a  whole  county, 
a  whole  township,  or  a  whole  neighborhood,  are 
involved  in  plotting  treason ;  because  no  eye- 
witness can  be  produced  to  prove  their  treason- 
able meetings,  cannot  treason  be  proved,  cannot 
combination  and  wicked  conspiracy  be  estab- 
lished, as  any  other  fact  in  the  law,  by  cir- 
cumstantial evidence  ?  If  you  see  the  stream 
which  comes  from  the  distant  mountains,  swol- 
len and  leaping  along  as  if  a  deluge  were  pour- 
ing its  waters  through  its  channel,  do  you  not 
know  that  the  snows  have  melted  at  its  source, 
and  the  rains  have  descended  from  the  hea- 
vens ?  Cannot  you  judge  the  cause  from  the 
effect  ?  And  when  ycu  see  acts  done  by  the 
prisoner,  which  show  you  that- he  was  ready  to 
leap  upon  his  horse  (as  rapidly  as  possible),  and 
going  to  the  ground  immediately  proceeded  to  in- 
cite those  who  are  assembling  by  concert  to  resist 
the  laws.  When  you  see  these  things,  can  you 
not  infer  (notwithstanding  the  evidence  of 
Lewis)  thet  he  went  there  by  pre-arrangement, 
and  that  he  was  known  by  the  colored  people 
as  a  man  who  would  stand  by  them,  in  their 
resistance  of  the  laws.  When  you  see  them  hail 
his  presence  with  a  shout,  ana  see  him  stand  by 
and  read  the  process  of  the  United  States,  saying 
not  one  word  to  these  ignorant,  misguided  indi- 
viduals, warning  them  of  their  danger,  il  though 
he  had  come  to  see  justice  done"  to  the  blacks, 
and  yet  does  them  the  injustice  of  not  warning 
them  that  they  were  about  committing  murder 


and  treason,  by  resisting  the  laws.    When  I  say 
that  he  would  not  tell  these  ignorant  people,  who 
were  about  to  imbrue  their  hands  in  innocent 
blood,  "you  are  doing  wrong,  here  is  authority 
I  from  the  United  States."    When  you  see  a  man 
|  (according  to  his  own  witness  Lewis,)  not  saying 
one  word  to  save  his  dear  colored  friends  from 
i  the  guilt  of  murder,  I  say  it  is  passing  human 
'  credulity  to  say  that  you  cannot  infer  in  all  that 
I  a  feeling  of  hostility  to  the  law,  and  an  intention 
to  resist  it  ? 

It  being  three  o'clock,  Mr.  Brent  here  discon- 
tinued his  argument  until  Monday,  the  8th  Dec, 
A.D.  1851. 

The  Court  is  adjourned. 


Philadelphia,  Monday,  December  8th,  1851. 

COVRT  OPEXED  AT  10  O'CLOCK. 

PRESENT,  JUDGES  GREEK  AND  EANE. 

The  list  of  Jurors  who  were  discharged  until 
'  to-day,  not  having  been  impannelied  in  the 
;  present  cause,  is  called. 

The  defaulters  were  then  called. 
All  the  Jurors  impannelied  in  the  present  case, 
:  present. 

Hugh  Campbell  and  Geo.  W.  Toland  are  ex- 

I  cused  for  the  term. 

A  Juror.    May  it  please  your  honors,  the 
j  opinions  I  expressed  and  still  hold,  I  feel  con- 
scious will  disqualify  me  from  serving  as  a 
Juror  in  this  case,  and  will,  therefore,  ask  to  be 
dismissed  finally. 

Judge  Geier.  Are  you  so  determinately  op- 
posed to  capital  punishment  that  you  could  not 
find  a  verdict  of  guilty  ? 

Juror.  No,  sir:  it  is  with  regard  to  opinions 
|  that  I  have  formed  and  expressed. 

Judge  Grier.    Such  as  would  prevent  your 
j  acting  as  an  impartial  Juror  ? 
Juror.    I  think  so. 

Judge  Geier.    Well  then  there  is  no  use  for 
j  your  stay  here.    What  is  your  name  ? 
Juror.    Hugh  Boss. 

Mr.  D.  P.  Browx.  Had  not  your  honor  better 
prove  it  by  the  regular  test  ? 

Judge  Geiee.    I  suppose   the  Juror  would 
|  answer  the  same  on  his  oath  as  he  does  now. 
Mr.  Brovtx.    But  it  may  produce  great  diffi- 
culty on  the  part  of  the  United  States.  Your 
honors  will  remember  the  case  of  Charles  Piea- 
I  sants;  and  I  merely  make  the  suggestion,  subject 
i  to  the  decision  of  the  Court. 

Mr.  Stevexs.  I  think  Mr.  Boss  was  set- 
aside  on  that  account,  when  he  was  asked  before. 

Mr  Eoss.  Yes,  sir:  and  I  should  have  taken 
the  opportunity  of  stating  my  opinions  on  that 
occasion,  but  could  not. 

Judge  Grier.    Under  such  circumstances  we 
cannot  give  a  Juror  right  of  absence.    If  you  are 
j  called,  you  may  be  challenged  on  account  of 
:  those  particular  opinions.    We  cannot  help  it. 

Mr.  Brext.  May  it  please  the  Court :  Gentle- 
j  men  of  the  Jury,  I  omitted  on  Saturday,  to  notice 
!  an  appeal  made  to  enlist  your  prejudices  against 
this  prosecution  by  Mr.  Lewis,  one  of  the  counsel 
for  the  defence,  who  seemed  to  bring  here  a  sort  of 


198 


TREASON  CASES. 


indictment  against  the  Southern  States,  in  respect 
to  our  treatment  of  slaves  and  free  persons  of 
color.  He  stated,  gentlemen,  that  by  the  laws  of 
some  Southern  states,  free  people  of  color  were 
arrested  and  sold  into  slavery  for  the  payment 
of  their  jail  fees. 

Now,  gentlemen,  is  there  such  an  issue  before 
you  to  try  ?  Have  you  aught  to  do  with  that, 
even  if  it  were  true  ?  I  can  only  say,  speaking 
f<»r  my  own  State,  gentlemen,  that  no  such  bar- 
barous statute  prevails  in  the  State  of  Maryland. 
There  we  mingle  with  the  code  and  institution  of 
slavery,  every  consideration  of  humanity,  nor  do  I 
believe  such  a  law  prevails  anywhere  in  the  South. 
That  gentleman  also  complained,  that  colored  citi- 
zens of  Pennsylvania  were  excluded  from  settling 
in  the  Southern  States.  Why,  gentlemen,  do  you 
recognize  them  as  citizens  of  your  State  ?  Do 
you,  yourselves,  recognize  your  colored  popula- 
tion as  citizens  of  your  State,  in  every  legal, 
constitutional,  and  political  sense  ?  Do  you  not 
yourselves  reserve  the  right,  whenever  you  think 
proper,  to  prevent  the  immigration  into  your 
State,  of  free  people  of  color  from  other  States  ? 
At  this  very  moment,  is  it  not  a  wide  and  spread- 
ing sentiment  in  your  own  State,  that  legislation 
is  necessary  to  arrest  this  growing  evil  ?  We  of 
the  South  and  of  Maryland,  do  claim  (knowing 
what  an  incubus  upon  the  South  it  is,)  we  do 
claim  a  right  to  prevent  immigration  of  free 
people  of  color  into  our  States.  It  is  a  right  that 
you  yourselves,  may  some  day  find  necessary  to 
your  own  well-being  and  protection.  That  gen- 
tleman also  said,  that  the  Union  is  not  to  be  dis- 
solved by  resisting  these  Acts  of  Congress,  or  by 
refusing  to  execute  them,  and  that  the  eternity 
of  the  Union  rests  upon  a  broader  and  stronger 
basis,  than  any  such  treasonable  apprehensions. 
When  I  hear  this  sort  of  language,  it  seems  as 
Patrick  Henry  said  in  the  times  of  the  Revolu- 
tion, "  to  be  like  one  crying  Peace  !  peace ! 
when  there  is  no  peace."  I  tell  you,  gentlemen, 
much  as  the  Union  is  venerated  and  beloved, 
North  and  South,  East  and  West,  there  are 
some  things  that  may  precipitate  ruin  and  disas- 
ter upon  that  Union.  I  tell  you,  that  whenever 
the  day  shall  arrive,  that  any  considerable  por- 
tion of  the  people,  (and  particularly  the  people 
of  the  South)  shall  be  satisfied,  that  the  consti- 
tution of  your  country  is  but  idle  parchment ; 
that  the  bond  of  the  Union  is  but  a  bond  of 
fraud  and  injustice  ;  I  tell  you,  in  "  that  dread- 
ful day  of  wrath,"  there  can  be  no  longer  Union. 
When  that  conviction  settles  and  fastens  upon 
the  minds  of  the  South,  you  will  find  them  stand- 
ing as  a  unit  to  resist  injustice  and  oppression; 
and  they  would  be  but  cravens  in  spirit,  if  they 
did  not  maintain  the  rights  which  had  been 
handed  down  to  them  by  their  Revolutionary 
forefathers.  We  all  cherish  and  love  the  Union. 
We  all  agree  at  the  South,  that  if  the  Union  is 
to  be  dissolved,  and  such  a  question  is  to  be 
agitated,  the  sin  is  not  at  our  door,  but  it  is 
upon  the  conscience  of  a  miserable  and  wicked 
faction  in  the  North,  who  are  seeking  to  rend 
asunder  the  bonds  of  this  Union. 

These  colored  people,  who  embrue  their  hands 
in  the  blood  of  Southern  masters,  coming  here, 


;  under  the  flag  of  the  Union,  and  the  charter 
of  the  constitution,  to  reclaim  their  property, 
these  are  but  mere  instruments,  and  the  anathe- 
mas of  heaven  and  of  man  should  not  rest 
upon  them  the  ten  thousandth  part  that  it 
does  upon  the  white  men,  who  have  incited  them 
to  these  acts,  and  who  stand  by  and  harken 
them  on  to  their  bloody  work.  Nor  does  the 
fearful  responsibility  devolve  even  upon  these 
white  men,  with'the  same  damning  force  that  it 
does  upon  those  who  in  high  places,  who  in  the 
Congress  of  your  Nation,  and  in  the  pulpit, 
preach  treason,  and  incite  men  to  rebellion, 
which  they  dare  not  practice  themselves.  They 
are  the  objects  for  the  execration  and  denuncia- 
tion of  the  patriot,  and  every  sound  lover  of  the 
American  Union. 

Gentlemen,  should  that  day  which  we  all  depre- 
cate, should  that  day  of  disunion  arrive,  what 
wou  d  we  not  see  ?  The  blackness  of  desolation 
would  reign  over  these  smiling  plains,  which  now 
invite  us  to  peace  and  fraternity.  And  though 
the  North  be  far  mightier  physically  than  the 
South,  yet  I  tell  you,  gentlemen,  you  are  not 
strong  enough  to  carry  on  a  war  of  invasion 
upon  the  weaker  South.  And  if  you  could  con- 
quer and  subjugate  your  seceding  brethren,  could 
the  sword  reunite  the  broken  fragments  of  a 
dismembered  Republic  ?  Let  me  read  upon 
this  subject,  (the  utter  impossibility  of  again 
reinstating  this  glorious  Republic  when  once  de- 
stroyed) let  me  read  the  thoughts  and  feelings  of 
the  greatest  mind  which  now  lives  upon  Ameri- 
can soil — I  mean  the  mind  of  Daniel  Webster.  I 
will  read  you  what  he  said  many  years  ago  upon 
this  very  question. 

"Other  misfortunes  may  be  borne,  or  their 
effects  overcome.  If  disastrous  war  should  sweep 
our  commerce  from  the  ocean,  another  generation 
may  renew  it;  if  it  exhaust  our  treasury,  future 
industry  may  replenish  it ;  if  it  desolate  and  lay 
waste  our  fields,  still,  under  a  new  cultivation, 
they  will  grow  green  again  and  ripen  to  future 
harvests.  It  were  but  a  trifle,  if  the  walls  of 
yonder  Capitol  were  to  crumble,  if  its  lofty  pillars 
should  fall,  and  its  gorgeous  decorations  be  all 
covered  by  the  dust  of  the  valley.  All  these 
might  be  re-built.  But  who  shall  re-construct 
the  fabric  of  demolished  government?  Who  shall 
rear  again  the  well-proportioned  columns  of 
Constitutional  liberty?  Who  shall  frame  to- 
gether the  skillful  architecture  which  unites 
National  sovereignty  with.  State  rights,  indi- 
vidual security,  and  public  prosper^?  No, 
gentlemen,  if  these  columns  fall,  they  will  not 
be  raised  again.  Like  the  Coliseum  and  the 
Parthenon,  they  will  be  destined  to  a  mournful, 
a  melancholy  immortality.  Bitterer  tears,  how- 
ever, will  flow  over  them,  than  were  ever  shed 
over  the  monuments  of  Roman  or  Grecian  art; 
for  they  will  be  the  remnants  of  a  more  glorious 
edifice  than  Greece  or  Rome  ever  saw — the  edi- 
fice of  Constitutional  American  Liberty." 

Let  me  also  read  to  you,  gentlemen,  a  con- 
cluding passage  from  Washington's  Farewell  Ad- 
dress.   He  says, 

"The  basis  of  our  political  system,  is  the 
right  of  the  people  to  make  and  to  alter  their 


UNITED  STATES  V.  HANWAY. 


199 


Constitutions  of  Government :  but  the  Constitu-  ' 
tion  which  at  any  time  exists,  till  by  an  explicit 
and  authentic  act  of  the  whole  people,  is  sacredly 
obligatory  upon  all.  The  very  idea  of  the  power, 
and  "the  right  of  the  people  to  establish  govern- 
ment, presupposes  the  duty  of  every  individual 
to  obey  the  established  aovernment.    All  ob- 
structions to  the  execution  of  the  laws,  all  com- 
binations and  associations,  under  whatever  plau- 
sible character,  with  the  real  design  to  direct,  j 
control,  counteract,  or  awe  the  regular  delibera- 
tion and  action  of  the  constituted  authorities,  are  j 
destructive  to  this  fundamental  principle,  and  of 
fatal  tendency." 

And  yet  we  have  fallen  upon  evil  times — upon 
wicked  times — when  this  doctrine  which  the 
Father  of  our  Country  left  us  as  a  sacred  legacy 
to  posterity,  is  here  in  the  very  builaing  where 
the  "Declaration  of.  Independence'-'  first  went 
forth  to  cheer  and  enlighten  mankind,  when  that 
doctrine  is  here  denied,  scoffed  at  and  denounced 
by  counsel.  When  counsel  get  up  in  this  Court  j 
of  Justice,  and  proclaim,  as  Mr.  Lewis  has  done, 
that  it  is  not  the  duty  of  an  American  citizen  to 
enforce  the  Constitutional  laws  of  the  country, 
or  that  he  is  not  bound  to  assist  in  their  execu- 
tion.  But,  gentlemen,  why  do  I  advert  to  all 
these  things  ?  Why  did  my  distinguished  col- 
league in  this  prosecution,  the  learned  District 
Attorney  for  the  United  States,  why  did  he  en- 
large upon  the  blessings  and  glory  of  the  Union, 
and  the  disasters  which  would  result  from  its  j 
destruction?  Is  it  to  make  you  swerve  one  hairs 
breadth  from  the  straight  line  of  your  conscience  ? 
No,  gentlemen.  It  is  but  to  show  you  your  re- 
sponsibility, in  order  to  nerve  you  to  the  more  ■ 
steady,  scrupulous  and  faithful  discharge  of  the 
solemn  duty  which  devolves  upon  you  in  that 
jury  box;  and  not,  gentlemen,  to  ask  that  one  j 
of  the  hairs  of  the  head  of  that  man  shall  be 
unjustly  sacrificed,  even  to  save  the  Union,  if  it 
depended  on  his  acquittal.  I  say  therefore  to 
you,  tremendous  as  is  the  responsibility  which 
rests  upon  you,  and  though  your  verdict  will 
reverberate  from  the  wintry  shores  of  the  Aris- 
took  river  to  the  golden  gates  of  California,  stand  | 
up  firm  and  erect,  looking  not  to  the  right  nor 
to  the  left  hand,  but  hold  aloft  the  golden  scales  j 
of  justice  with  unshaken  nerves,  and  in  that 
great  balance,  weigh  on  the  one  side,  Castner 
Hanway  the  living  man,  and  in  the  other  side 
Edward  Gorsuch  the  dead  man  ;  then  look 
and  see  which  way  the  beam  inclines.  Allow 
me,  upon  this  subject,  gentlemen,  to  quote  to  ; 
you  the  language  of  Judge  Patterson,  a  distin- 
guished  Judge  of  the  United  States  Court  ;  now 
deceased.  In  regard  to  the  consequences  which 
depend  upon  your  verdict,  the  learned  Judge 
says,  "The  consequences  are  not  with  the  jury: 
it  is  their  province  to  do  justice  :  the  attribute  of 
mercy  is  placed  by  our  Constitution  in  other  | 
hands." 

I  also  will  read  what  is  said  by  Judge  Iredell, 
on  the  trial  of  Fries'  case,  known  as  the  Xorth- 
ampton  insurrection.  He  says,  gentlemen,  "This 
is  an  issue  of  an  aspect  the  most  awful  and  im- 
portant that  any  juror  can  ever  be  called  upon  to 
determine.    It  is  your  duty  to  divest  yourselves  . 


of  all  manner  of  prejudice  and  partiality,  one 
way  or  the  other.  Dismiss  from  your  minds,  as 
much  as  you  can,  all  which  you  might  have 
heard  or  thought  on  this  case  before  you  came 
into  this  Court,  and  confine  your  opinions  merely 
to  the  evidence  which  has  been  produced.  No 
extraneous  circumstances  whatever  ought  to  have 
the  least  weight  with  you  in  giving  your  verdict ; 
you  ought  not,  and  I  hope  you  will  not,  take  into 
your  consideration  at  all,  whether  the  safety  of 
the  United  States  requires'  that  the  prisoner 
should  suffer,  on  the  one  hand,  or  whether  on 
the  other,  it  may  be  more  agreeable  to  your 
feelings  that  he  should  be  acquitted.  It  is  solely 
your  duty  to  say  whether  he  is  guilty  of  the 
crime  charged  to  him  or  not.  No  man  can  con- 
ceive that  the  interest  of  any  government  can 
possibly  make  it  requisite  to  sacrifice  any  inno- 
cent man ;  and  I  can  rest  perfectly  satisfied, 
which  I  have  no  doubt  you  also  are,  that  this 
Government  will  not,  and  God  forbid  any  con- 
siderations whatever  should  ever  influence  such 
an  action." 

Therefore,  I  say  to  you,  gentlemen,  great  as 
the  consequences  are,  and  although  your  verdict 
may  have  the  effect  perhaps  of  kindling  into 
fiercer  flame  those  fires  which  are  already  con- 
suming our  political  edifice,  or  on  the  other 
hand,  it  may  glance  like  the  sunbeam  of  a  hal- 
cyon day.  imparting  life  and  peace  and  hope  to 
the  troubled  hearts  of  our  countrymen,  yet  you 
have  nothing  to  do  with  such  consequences.  The 
responsibility  will  not  be  with  you — You  are  not 
responsible  for  those  vast  consequences. — Xor 
will  you  be  responsible  for  the  more  solemn 
consequences  to  the  prisoner  at  the  bar,  (in- 
volving his  life  itself,)  if  you  base  your  verdict 
upon  pure  hearts,  truth  and  eternal  justice. 
Gentlemen,  why  is  punishment  inflicted  by  hu- 
man laws  ?  Why  does  man  take  upon  himself 
to  arraign  at  the  bar  of  justice  his  fellow-being, 
and  to  pass  sentence  of  life  or  death  upon  that 
being?  It  is  for  the  peace  aad  security  of  so- 
ciety; it  is  part  of  the  great  right  of  self-pre- 
servation and  self-defence.  I  will  show  you  that 
this  is  the  ground  upon  which  it  is  put  according 
to  the  opinions  of  able  jurists.  The  same  Judge, 
Iredell,  in  Fries'  trial,  says,  "A  great  and  im- 
portant end  of  bringing  persons  guilty  of  public 
crimes  to  justice,  is  to  preserve  inviolate  the 
laws  of  our  country.  Men  who  commit  crimes 
ought  to  be  punished ;  otherwise,  no  safety  or 
security  can  be  had."  What  shield  then  has  this 
prisoner  to  which  he  can  look  for  protection 
against  the  accusation  of  this  evidence  ?  2s  one, 
I  say,  unless  it  can  be  found  in  the  law  of  the 
case.  And  yet,  gentlemen,  he  has  come  into 
this  Court,  with  a  shield  hanging  on  his  left  arm, 
to  which  you  as  jurors  must  be  blind  and  insen- 
sible. 

Xever  before  have  I  seen  or  heard  of  a  pri- 
soner standing  up  for  arraignment,  side  by  side, 
with  his  devoted  and  affectionate  wife.  For  that 
wife,  gentlemen,  J.  have  a  sympathy  as  deep,  a 
sensibility  as  profound,  as  any  man  can  have. 
But  I  would  ask  you,  what  have  we  in  this  court 
of  justice,  to  do  with  such  tears  of  sympathy? 
At  the  vestibule  of  this  temple  of  justice,  we 


200 


TREASON  CASES. 


must  divest  ourselves,  as  far  as  possible,  of 
every  feeling  and  sympathy  of  our  nature, 
(though  they  be.  the  most  honorable,  the  most 
commendable,)  which  are  calculated  to  un- 
nerve our  hearts,  when  called  upon  to  the  per- 
formance of  high  and  solemn  duties.  Gentle- 
men, the  afflicted  lady  of  this  prisoner,  for  her 
conduct,  has  my  admiration,  my  respect.  But, 
what  has  taken  place  in  the  public  view  of  this 
jury  and  this  court,  I  have  a  right  to  comment 
on,  if  possible  to  cross  the  spell  of  that  female 
influence,  which  is  more  potent  than  the  elo- 
quence of  counsel.  I  regret,  I  deplore,  gentlemen, 
that  the  affectionate  wife  of  this  prisoner,  is  called 
upon  to  partake  the  bitter  fruits  of  the  seeds 
which  he  has  sown  to  the  winds.  He  had  a 
wife,  and  he  had  a  home.  If  he  were  worthy 
of  that  home  and  that  wife,  and  that  wife's  love, 
why  is  he  found  with  the  rising  sun,  the  welcomed 
friend,  if  not  the  acknowledged  leader  of  a  band 
of  murderers  ?  Why  does  he  leave  the  arms  of 
that  devoted  wife,  in  order  to  go  forth,  to  aid  and 
incite  a  gang  of  miscreants,  to  acts  of  lawless- 
ness and  bloodshed.  It  always  will  happen, 
that  those  who  indulge  in  such  things,  who  go 
forth  with  treasonable  purposes  in  their  hearts, 
will  find,  that  their  acts  in  all  their  dreadful 
consequences,  come  home,  "like  young  birds, 
to  roost,"  and  that  the  innocent  members  of  their 
family  are  afflicted  in  mind  and  feelings,  by  the 
consequences  of  these  acts.  What,  gentlemen, 
are  we  to  be  told  for  one  moment,  that  this  pri- 
soner is  not  to  have  justice  meted  out  to  him, 
because,  he  has  a  devoted,  loving  and  trusting 
wife  ?  If  that  be  human  law  and  justice,  then 
jurors  should  be  sworn  to  try  the  cause  by  the 
merits  and  demerits  of  a  man's  family,  and  not 
upon  his  own  merits  or  demerits ;  and  the  con- 
sequence would  be,  that  you  would  send  the  soli- 
tary and  isolated  criminal,  to  a  speedy  doom  ; 
because  he  had  no  loving  partner  to  allay  his 
guilt,  while  the  as  guilty  wretch  will  laugh  at 
jurors,  and  courts  of  justice,  in  the  security  of 
that  influence  which  protects  him,  in  the  form  of 
an  affectionate  and  interesting  wife.  Have  not 
criminals  gone  before  Castner  Hanway,  and 
perished  upon  the  scaffold,  and  in  the  peniten- 
tiary, though  surrounded  by  tears  and  broken 
hearts,  as  with  a  rampart  of  defence.  But,  this  is 
a  one-sided  view  of  the  picture  however.  Had 
Edward  Gorsuch  no  wife,  who,  as  a  widow,  is 
now  mourning  the  loss  of  the  lover  of  her  youth, 
and  the  prop  of  her  declining  years?  Castner 
Hanway  can  stand  by  the  side  of  his  wife  in  a 
court  of  justice,  but  there  is  no  Edward  Gorsuch 
to  stand  by  the  side  of  his  widow.  And  before 
Castner  Hanway  should  be  allowed  to  appeal  to 
the  sympathies  of  a  jury  by  such  considerations, 
he  should  at  least  have  striven  to  save  Edward 
Gorsuch's  life,  for  the  sake  of  his  wife  and  chil- 
dren. But,  this  is  not  the  issue  which  you  are 
sworn  to  try.  This  is  not  the  mode  by  which  it 
is  to  be  tried.  I  say,  that  Castner  Hanway  has 
declared  his  willingness,  to  be  tried  "  by  God 
and  his  country;  "  which  country,  you  are.  A 
true-hearted  man  would  require  no  such  consider- 
ations, and  no  such  false  sympathies.  He  would 
desire  to  be  tried  by  the  merits  of  his  defence. 


He  would  not  distrust  the  intelligence  or  integ- 
rity of  the  jury.  There  are  other  and  stranger 
things  which  have  occurred,  and  marked  the 
progress  of  this  trial.  We  have  it  in  evidence, 
from  the  witness  stand,  that  two  important  Uni- 
ted States  witnesses,  Peter  Washington  and 
John  Clark,  were  in  prison  as  witnesses — that 
on  a  certain  morning,  the  witness  waked  up,  and 
found  his  companions  gone.  No  bolt  or  bar 
broken,  but  spirited  away,  as  if  by  magic,  and 
they  have  never  been  heard  of  since. 

We  have  another  striking  illustration  of 
•the  tricks  of  these  secret  magicians,  and  one 
which  has  elicited  remarks  from  the  oench  ;  one 
which  occurred  in  your  very  presence.  A  wit- 
ness for  the  United  States,  who  had  thrice  sworn 
distinctly,  once  in  Christiana,  once  at  Lancaster, 
and  once  before  the  Grand  Jurors  of  this  city — 
that  witness,  Harvey  Scott,  is  brought  into  Court 
on  the  part  of  the  United  States.  The  counsel 
for  the  United  States,  acting  on  the  presumption 
that  the  man  would  make  the  same  statement 
which  he  had  always  made,  placed  him  on  the 
stand ;  he  confesses  his  perjury,  and  acknowl- 
edges that  he  has  thrice  perjured  his  soul,  that 
he  was  not  on  the  ground  of  action,  and  knows 
nothing  about  it.  Gentlemen,  far  be  it  from  me 
to  impute  this  to  the  defendant's  counsel,  or  even 
to  the  defendant.  I  acquit  them  all  of  having 
tampered  with  that  witness.  But  that  some 
artful,  designing,  reckless,  and  unprincipled 
scoundrel,  has  tampered  with  him,  I  verily 
believe,  and  no  man  who  understands  human 
nature,  can  fail  to  detect  it.  If  he  were  fright- 
ened at  Christiana,  was  he  frightened  at  Lancas- 
ter ?  Was  he  frightened  when  he  came  before 
the  Grand  Jury  of  this  city,  and  reiterated  the 
same  evidence  ?  What  sort  of  fear  was  that,  gen- 
tlemen, which  perverted  his  forked  tongue  three 
times?  Would  he  not  have  been  safe,  if  he  had 
told  the  learned  District  Attorney,  that  he  knew 
nothing  of  this  matter,  and  could  not  testify  to  it. 
You  must  believe  it  was  a  lying  pretence,  put  in 
his  mouth  by  some  artful,  and  designing  scoun- 
drel.   Allow  me,  before  proceeding  more  parti- 

I  cularly  to  discuss  the  facts  of  the  case,  to  review 
the  conduct  of  the  neighborhood:  that  sweet  and 

;  peaceful  valley,  which  has  been  the  theme  of  so 
much  eulogy  on  the  part  of  counsel  for  the  de- 
fendant. I  thought  of  the  "  sweet  vale  of  Ovoca,  in 
whose  bosom  the  bright  waters  meet,"  where 
mingled  peace  and  harmony  dwell,  and  where 
no  rude  passions  could  enter  to  deface  the  earthly 
paradise.  This  is  the  elysium  which  has  been 
painted  before  you,  a  spot  of  peace,  a  garden 
of  happiness,  invaded  for  the  first  time,  ruth- 
lessly, by  the  southern  master,  claiming  his  fugi- 
tive property.  N  ow  for  the  honor  of  our  country, 
and  the  honor  of  the  State  of  Pennsylvania,  and 
the  honor  of  Lancaster  County  ;  and  most  of  all, 
for  the  honor  of  Sadsbury  township  ;  let  us  see 
what  the  people  of  that  happy  valley  have  done. 
How  they  have  discharged  the  duty  of  patriots 
and  American  citizens,  we  will  not  ask ;  but  how 
have  they  discharged  the  common  duties  of  hu- 
manity !  What  do  we  see  ?  We  behold  Elijah 
Lewis  walking  calmly  away,  when  he  saw  the 
difficulty  was  about  to  begin.    When  he  is  asked 


UNITED  STATES  V.  HANWAY. 


201 


to  come  and  succor  a  wounded  man,  (this  is  Ms 
own  admission,)  he  walked  away  deliberately, 
and  he  could  give  no  reason  for  such  conduct, 
except  the  miserable  lie.  that  he  felt  he  was  in 
some  danger  himself.  And  yet  we  find  one  true 
hearted  man,  (as  there  was  one  righteous  man 
in  Sodom,)  so  in  this  traitorous  valley,  we  find 
Miller  Nott. 

He  did  not  consider  his  life  in  danger.  He 
told  the  infuriated  negroes,  a  few  moments  after- 
wards, when  marching  up  to  the  wounded  man, 
Dickinson  Gorsuch,  helpless  and  unprotected, 
riddled  with  shot,  and  bleeding  at  the  mouth 
from  his  lungs,  he  told  Clarkson  to  save  his 
life  ;  and  at  "the  third  time,  told  him  to  save 
the  man,  or  mind  what  was  before  him.  And 
he  did  save  his  life  ;  and  Dickinson  Gorsuch, 
to  this  day,  stands  indebted  to  Miller  Nott, 
and  him  alone,  for  the  salvation  of  his  life. 
Elijah  Lewis  turns  his  back  upon  the  wounded 
man  and  his  cry  for  help,  and  would  not  succor 
him;  and  he  comes  before  the  jury  with  the 
wretched  lie  in  his  mouth,  that  he  was  afraid  of 
his  own  life  ;  though  these  were  his  own  friends, 
though  Clarkson,  their  leader,  had  been  to  his 
house  early  that  morning,  to  ask  him  to  see 
that  justice  was  done.  This  man,  who  coolly 
turns  his  back  upon  his  victim,  and  walks  away; 
gracious  heavens  !  has  that  man  one  human  feel- 
ing in  his  breast  ?  has  that  man  a  desire  to  save 
human  life  ?  Let  Dickinson  Gorsuch  have  been 
black,  and  covered  all  over  with  crimes  ;  let  him 
have  been  a  slave-catcher,  or  the  son  of  a  slaves 
catcher,  to  use  the  cant  phrase,  if  he  were  the 
veriest  criminal  in  the  world,  could  any  man 
have  done  more  to  disgrace  his  species,  than 
Lewis  did,  leaving  him  in  solitude  and  misery  to 
die?  What  next  ?  There  arrives  on  the  ground, 
a  few  moments  afterwards,  this  Scarlett,  who, 
instead  of  being  Scarlett  by  name,  should  have 
some  name  which  would  stamp  him  with  the 
diabolical  blackness  in  which  this  evidence  paints 
him, — what  does  he  do  ?  Dickinson  Gorsuch  has 
testified  to  it,  and  the  counsel  for  the  defence  do 
not  dare  to  gainsay  what  he  has  stated.  What 
does  he  tell  you  ?  When  he  recovered  his  con- 
sciousness, after  having  rolled  five  or  six  feet  in 
his  agony  and  pain,  from  the  shade  of  the  cak 
tree,  under  which  he  had  been  placed  by  Kline, 
he  saw  Scarlett  standing  near  him,  looking  on. 
He  asked  him  to  hold  his  head,  and  to  bring 
him  water.  He  gave  him  no  answer.  He  con- 
tinued to  implore  him  until,  finally  and  reluct- 
antly, he  did  go,  and  brought  him  water.  Why 
did  he  go  ?  Does  he  deserve  credit  for  it  ?  No. 
gentlemen.  He  saw  the  victim  of  that  conspiracy, 
which  I  will  presently  show  you  he  had  been  ac- 
tive in  organizing  and  arranging  for  this  bloody 
work.  He  knew  one  man  had  already  departed 
to  eternity,  and  saw  the  other  struggling  for 
breath  and  life.  I  have  no  doubt  his  fears  smote 
him,  for  conscience  he  had  none,  and  he  does 
reluctantly  go  and  get  water.  How  different 
the  case  of  Miller  Nott,  and  his  son  John 
Nott.  They  required  no  beseeching,  no  impor- 
tuning. The  father  arrests  the  negroes  who 
were  about  to  murder  Dickinson  Gorsuch,  and 
the  son  goes  to  get  water  and  an  umbrella. 

26 


and  shelters  the  head  of  the  almost  dying  man 
from  the  summer  sun.  What  next?  The  dead 
body  of  old  Mr.  Gorsuch  is  not  treated  with  de- 
cent attention.  Will  you  believe  it,  gentlemen, 
that  in  a  Christian  community,  a  community  who 
profess  themselves  to  be,  par  excellance,  philan- 
thropists towards  all  mankind,  this  old  man's 
body  is  suffered  to  lie  there  for  two  or  three  hours 
in  its  weltering  gore;  and  when  we  find  that 
body,  and  examine  it,  the  dead  man  has  been 
robbed  of  every  dollar  of  his  money.  This  citi- 
zen of  Maryland  who  was  the  leader  and  head  of 
the  party,  who,  doubtless,  had  means,  who,  ac- 
cording to  the  evidence,  is  shown  to  have  paid 
more  money  to  two  of  the  officers  who  went 
up  in  company  with  Samuel  Williams  the  in- 
former,— I  mean  Tulley  and  Agan, — that  man  is 
found  without  a  solitary  dollar  in  his  pockets, 
when  they  are  examined  some  two  hours  after 
his  death,  according  to  the  testimony  of  Louis 
Cooper,  the  son-in-law  of  Elijah  Lewis.  Robbery 
of  the  dead !  These  are  the  high  and  holy  patri- 
ots ;  heroes  of  that  race  who  strike  for  the  glori- 
ous principles  of  liberty,  and  yet  are  not  above 
robbing  the  dead.  What  next,  gentlemen.  Why. 
Joshua  Gorsuch,  who  had  run  the  gauntlet  of  a 
line  of  negroes  striking  him  with  clubs  over  the 
head  until,  according  to  Rogers,  one  of  the  de- 
fendants witnesses,  he  is  seen  staggering  along 
the  lane,  and  falling  on  his  knees  as  he  ran 
before  the  infuriated  blacks.  Why  was  not 
that  man  invited  into  his  house  for  shelter  by 
Rogers,  who  saw  him  thus  staggering  and  falling 
on  his  knees  ?  Mr.  Joshua  Gorsuch  tells  us. 
that  not  liking  the  appearance  and  conduct  of 
Rogers,  it  induced  him,  wounded  and  exhausted 
as  he  was,  to  fly  to  the  woods  for  refuge,  rather 
than  to  the  house  of  Rogers.  He  and  Kline 
meet  in  the  woods ;  they  travel  on  until  they 
come  to  a  store ;  this  wounded  man  who  had  lost 
his  hat,  buys  another  at  the  store,  and  asks  for  a 
conveyance.  He  is  desperately  wounded  and  his 
strength  nearly  exhausted ;  there  is  a  man 
standing  at  the  door  with  a  wagon,  and  he  says 
he  wiR  take  him  to  Penningtonville,  a  distance 
of  a  short  mile,  for  a  dollar.  He  gives  the  dol- 
lar ;  the  man  thinks  a  moment,  and  then  returns 
the  dollar  back,  and  says  he  cannot  take  it,  and 
he  cannot  give  him  the  conveyance.  What  sort 
of  a  man  was  that  ?  What  sort  of  humanity  is 
that  ?  And  these  two  men,  Kline  and  Joshua 
Gorsuch,  fatigued  and  exhasted,  and  one  of  them 
wounded  almost  to  death,  from  the  efiect-s  of 
which  wounds  he  had  to  remain  at  home  after- 
wards for  four  or  five  weeks,  incapable  of  attend- 
ing to  business ;  they  are  compelled  to  walk  that 
mile,  and  get  to  Penningtonville  as  they  can. 

What  next  ?  We  come  to  Castner  Hanway's 
conduct  ?  According  to  his  own  witness,  Lewis, 
according  to  all  the  witnesess  in  this  case,  he 
never  said  one  word  to  arrest  these  negroes  be- 
fore the  mischief  was  done.  Though  he  could 
afterwards  say,  "Boys,  don't  fire;"  could  call 
them  "boys,"  in  a  familiar  way,  when  they  were 
turning  their  fire  inconveniently  near  to  him ; 
yet  not  one  word  to  forbear,  before  the  first 
murderous  attack.  He  did  not  say,  "  Mind 
what  is  before  you,"  as  Miller  Nott  did.  No 


202 


TREASON  CASES. 


such  word  comes  from  his  lips,  but  he  slowly 
wheels  his  horse  and  calmly  and  deliberately 
gazes  upon  this  bloody  scene.  Dr.  Pierce  is  fly- 
ing, the  erring  ball  has  passed  through  his  hat, 
just  grazing  his  head  ;  Joshua  Gorsuch  is  there 
too,  staggering  along  as  he  best  could,  they  both 
apply  to  Castner  Hanway  to  allow  Joshua  Gor- 
such  to  get  behind  on  his  horse.  Does  he  do  it  ? 
If  he  was  a  good  Samaritan,  or  a  good  citizen,  if 
his  heart  was  not  with  the  murderers,  would  he 
not  have  taken  that  wounded  man  on  his  swift 
horse,  and  spurred  away  with  him  into  safety. 
Though  he  did  turn  around  when  the  negroes 
were  about  to  fire,  and  Dr.  Pierce,  their  tar- 
get, was  hiding  behind  his  horse,  and  say, 
"Boys,  don't  fire."  Yet  he  had  the  opportunity 
of  taking  J oshua  Gorsuch  on  his  horse  and  save 
him,  it  would  have  been  the  work  of  an  instant, 
but  he  gallops  away,  leaving  Dr.  Pierce  and 
Joshua  Gorsuch  to  their  fate.  Nothing  but  the 
interposition  of  Heaven,  nothing  but  Providence 
itself,  saved  the  lives  of  those  two  hunted  men. 
Thus  we  see  the  two  parties.  Elijah  Lewis  going 
towards  the  South,  and  coldly  turning  his  back 
on  the  wounded  Dickinson  Gorsuch ;  and  Castner 
Hanway  going  to  the  North  upon  his  horse, 
heartlessly  flying  from  two  wounded  men,  and 
saying,  "  I  can  do  nothing  for  you."  Is  that  all? 
What  am  I  to  say  about  the  worshipful  squire  ? 
A  man  in  the  commission  of  the  peace,  one  Squire 
Pownall,  who,  according  to  the  testimony  of 
Henry  Birt,  one  of  their  own  witnesses,  met 
Kline  at  the  Brick  Mill,  which  I  believe  is  Han- 
way's  mill.  Kline  was  flying  from  the  place  and 
there  meets  Squire  Pownell,  and  has  a  conversa- 
tion with  him.  I  will  read  the  evidence  upon 
that  point  to  show  that  I  make  no  statement  that 
is  not  verified  by  the  evidence.  Here  is  the  testi- 
mony of  Henry  Birt,  showing  that  Kline  there 
told  Squire  Pownell  of  these  men  being  wounded, 
and  I  will  read  it. 

"  He  (Kline)  came  along  by  the  mill,  and 
stopped  when  he  was  opposite  the  mill.  First,  I 
believe  he  inquired  the  way  to  Penningtonville, 
and  Thompson  Loughead  directed  him  on  the 
way.  He  came  over  there  ;  he  was  a  little  hard 
of  hearing;  he  came  over  to  the  mill  to  hear 
what  we  had  to  say,  and  we  told  him  the  way,  and 
he  said  there  were  two  men  laying  over  there  at  the 
house,  badly  wounded,  and  particularly  a  young 
man  laying  up  in  the  woods,  that  he  thought 
would  die,  and  he  wanted  to  get  a  conveyance  to 
'take  them  to  the  railroad.  Thompson  asked  the 
reason  why  they  stayed  so  long  until  these  men 
were  wounded.  Kline  remarked  that  he  wanted 
to  withdraw  but  they  would  not  mind  him."  He 
then  goes  on  to  state  that  Squire  Pownell  was 
present  at  this  conversation. 

What  does  this  prove  ?  Why  it  proves  that 
Squire  Pownell  was  at  the  mill,  and  heard  Kline 
say,  that  there  were  two  wounded  men,  and  that 
he  wanted  a  conveyance,  one  of  whom  he  said 
was  in  the  woods  and  he  thought  would  die. 
What  did  Squire  Pownell  do  ?  Knowing  that 
Kline  was  a  witness  to  this  transaction,  hearing 
two  men  had  been  wounded,  what  does  he  do? 
Does  he  carry  him  along  to  take  his  deposition, 
Issue  process,  and  arrest  the  murderers?  No, 


he  lets  Kline  go  on  his  way  to  Penningtonville, 
and  rides  on  to  Parker's  house.  He  is  there  at 
9  or  10  in  the  morning  and  sees  the  dead  body  ; 
and  Elijah  Lewis  says  that  he  went  there  at  10 
o'clock  and  saw  Squire  Pownell  there.  Elijah 
Lewis  was  also  a  witness.  What  does  Squire 
Pownell  do  ?  He  omits  to  take  the  affidavit  of 
Lewis  as  he  had  clone  with  Kline.  About  10 
o'clock  they  take  the  dead  body  in  the  dearborn 
of  Mr.  Cooper  to  Christiana,  and  there  they  hold 
an  inquest.  Thus  we  see  Squire  Pownell,  in  the 
commission  of  the  peace,  recreant  to  his  daty ; 
allowing  murder  to  be  committed  openly  in  the 
neighborhood  ;  knowing  who  are  the  witnesses, 
hearing  the  words  of  Kline  at  the  mill;  but 
standing  with  folded  arms,  and  suffering  the  men 
principally  guilty  of  the  murder  to  escape. 

Is  this  conduct  befitting  a  magistrate,  and  has 
he  been  put  upon  the  stand  by  the  defence  to  ex- 
plain his  conduct  ?  There  is  not  one  word  of  ex- 
planation to  be  given,  but  he  stands  before  the 
public  and  this  jury  as  unworthy  to  bear  the 
commission  of  a  justice  of  the  peace,  and  as  a 
sympathizer  with  the  negroes  in  all  their  crimes. 

What  next?  We  come  to  Dr.  Cain,  a  physician 
of  the  neighborhood.  He  is  a  witness  upon  the 
part  of  the  United  States,  and  he  is  one  of  those 
men  who  upon  oath  will  tell  the  truth.  What  does 
he  tell  ?  Enough  to  damn  himself.  He  had  heard 
about  six  o'clock  in  the  morning,  that  there  had 
been  a  fight  at  Parker's  house,  and  in  the  forenoon 
sometime,  he  heard  that  a  man  had  been  killed  in 
the  fight.  ' '  Well,  Doctor,  after  you  heard  the  man 
was  killed  did  you  dress  the  wounds  of  any  colored 
persons  that  day?"  "Yes,  after  I  heard  of  this,  I 
extracted  balls  from  the  arm  of  one  negro,  and 
from  the  leg  of  another."  "  Did  you  ask  how  they 
got  those  wounds  ?"  "No,  I  asked  no  questions." 
"  Who  were  these  men  ?"  "  One  of  them  was  my 
tenant,  and  the  other  was  some  friend  of  his  that 
came  there  to  his  house."  "What  became  of 
these  men,  and  did  you  give  information  about 
them?"  "No,  I  did  not,  though  I  knew  a  man 
was  killed,  and  had  extracted  balls  from  two  men 
which  they  must  have  got  in  that  fight ;  no  reason 
to  believe  they  got  them  anywhere  else,  yet  I 
took  no  steps  for  their  arrest."  What  is  the  con- 
sequence ?  That  evening  his  house  has  no  tenant ; 
they  have  taken  the  wings  of  the  morning  and 
have  flown  away,  so  that  they  have  never  been 
heard  of  since.  Why  did  these  squires  and 
doctors — why  did  these  other  men  who  ought  tc 
be  respectable  tillers  of  the  soil  in  that  neighbor- 
hood ;  why  does  every  man  within  the  range 
of  that  happy  valley  as  it  has  been  called— 
why  are  they  all  thus  recreant  to  their  duty, 
to  the  laws  of  their  country,  and  of  humanity  ? 
Because  there  is  a  colony  of  runaway  slaves 
there;  because  that  community  (and  I  bohily 
charge  it)  are  not  even  spurious  philanthropists 
or  crazy  fanatics,  but  because  they  are  there  in 
the  enjoyment  of  the  labor  of  these  runaway 
slaves  to  the  exclusion  of  white  labor;  they 
get  it  cheaper  than  they  could  white  labor  ;  and 
it  is  a  mercenary  motive  on  their  part — a  base, 
sordid  motive  :  that  is  their  philanthrophy  and 
friendship  to  colored  people. 

But  let  me  come  to  the  darkest  portion  of  the 


UNITED  STATES  V.  HAKWAY. 


203 


conduct  of  that  neighborhood ;  let  me  come  to  the 
grand  finale,  fit  to  crown  so  much  turpitude  and 
wickedness — so  much  traitorism  and  so  much 
disgrace.  I  will  read  you,  gentlemen,  this  pre- 
cious inquest,  drawn  up  by  the  hand  of  Squire 
Pownell  himself,  and  signed  by  twelve  good  and 
lawful  men  of  that  community.  Now  what  does 
this  say.  I  will  read  it  to  you  as  follows  : 
Lancaster  County,  ss. 

An  inquisition  indented,  taken  at  Sadsbury 
township,  in  the  county  of  Lancaster,  the  11th 
day  of  September,  A. D.  1851,  before  me,  Joseph  D. 
Pownell,  Esq.,  for  the  county  of  Lancaster  ;  upon 
the  views  of  the  body  of  a  man.  then  and  there 
lying  dead,  supposed  to  be  Edward  Gorsuch,  of 
Baltimore  county,  Maryland,  upon  the  affirma- 
tions of  George  Whitson,  John  Rowland,  Osborne 
Dare,  Hiram'  Kinnard,  Samuel  Miller,  Lewis 
Cooper,  George  Firth,  "William  Knott,  John 
Hillis,  William  Milthouse,  Joseph  Bichwine,  and 
Miller  Knott,  good  and  lawful  men,  of  the 
county  aforesaid,  who  being  duly  affirmed,  and 
charged  to  inquire  on  the  part  of  the  Common- 
wealth, when,  where,  and  how,  the  said  deceased 
came  to  his  death ;  do  say,  upon  their  affirma- 
tion, that  on  the  morning  of  the  11th  inst.,  the 
neighborhood  was  thrown  into  an  excitement  by 
the  above  deceased,  and  some  five  or  six  persons 
in  company  with  him,  making  an  attack  upon  a 
family  of  colored  persons,  living  in  said  town- 
ship, near  the  brick  mill,  about  four  o'clock  in 
the  morning,  for  the  purpose  of  arresting  some 
fugitive  slaves,  as  they  alleged.  Many  of  the 
colored  people  of  the  neighborhood  collected, 
and  there  was  considerable  firing  of  guns,  and 
other  fire-arms,  by  both  parties.  Upon  the  arri- 
val of  some  of  the  neighbors  at  the  place,  after 
the  riot  had  subsided,  found  the  above  deceased 
laying  upon  his  back  or  right  side,  dead.  Upon 
a  post  mortem  examination  upon  the  body  of  the 
said  deceased,  made  by  Drs.  Patterson  and  Mar- 
tin, in  our  presents,  we  believe  he  came  to  his 
death  by  gun  shot  wounds,  that  he  received  in 
the  above-mentioned  riot,  caused  by  some  per- 
son or  persons,  to  us  unknown. 

[Signed  by  all  the  jurors.] 

.Now  what  is  the  oath  they  all  took ?  It  was 
to  inquire  on  the  part  of  the  Commonwealth, 
when,  where  and  how  the  said  deceased  came  to 
his  death — that  is  the  form  of  the  oath  the  law 
imposes  upon  them.  They  are  sworn  to  inquire. 
What  do  they  do  ?  They  examine  no  witnesses 
except  the  doctors,  who  for  the  sake  of  science 
and  surgery,  made  a  post  mortem  examination, 
and  find  out  that  the  man  who  had  been  riddled 
by  balls  and  shot,  and  beaten  over  the  head  with 
corn-cutters  and  clubs — wonderful  to  say — by 
the  science  of  Dr.  Patterson  and  some  other 
doctor,  has  been  found  to  have  actually  died 
from  that  violence.  Though  Elijah  Lewis,  a  man 
living  in  that  neighborhood,  saw  all  or  a  princi- 
pal part  of  the  transaction — though  Castner 
Hanway  saw  the  transaction — though  Mr.  Kline 
had  seen  it — had  been  one  of  the  party — though 
he  had  travelled  from  Penningtonviile  and  got  to 
Christiana,  in  time  to  be  present  at  the  in- 
quest, and  offered  himself  to  be  sworn,  yet  this 
jury,  sworn  and  affirmed  to  inquire  when  and 


'  where  and  how  this  man  had  met  with  his  death, 
;  did  not   examine   a  solitary  witness.  Lewis 
\  Cooper  tells  you  about  that.    He  is  the  son-in- 
'  law  of  Elijah  Lewis,  and  is  one  of  that  inquest. 
He  said  the  jury  did  not  want  to  hear  Kline,  be- 
,  cause  they  would  not  believe  one  word  that  he 
might  say.    "How  is  that,  Mr.  Cooper?  You 
didn't  know  then  that  there  were  twenty -nine 
j  witnesses  in  the  City  of  Philadelphia,  who  would 
:  swear  that  Kline  was  not  to  be  believed  on  his 
\  oath — you  didn't   know  any  thing   about  his 
|  general   character  for   veracity  ?"     Ah. !  but 
|  then,  "he  had  been  telling  various  tales  there 
,'  that  morning,  and  none  of  the  jury  would  believe 
I  him,  and  therefore  we  would  not  hear  him."  Is 
not  that  in  the  first  place,  a  monstrous  thing, 
;  that  jurors  would  not  hear  a  man  making  state- 
\  ments  on  oath — when  summoned  and  sworn  to 
inquire,  will  not  hear  the  man  on  oath — because 
i  they  have  formed  and  prejudged  the  case  before 
they  were  impannelled,  from  hearing  him  talking. 
:  Gentlemen,  this  is  not  so  !     The  various  tales 
|  Kline  had  told,  and  which,  Lewis  Cooper  says 
prevented  the  jury  from  believing  him,  were  not 
various  and  contradictory — but  the  true  reason 
was,  because  he  was  a  stranger  there,  without 
friends,  and  his  party  had  been  driven  from  the 
ground,  by  the  negroes  and  their  white  allies — 
because  he  there,  publicly  and  boldly  charged 
Elijah  Lewis  and  Castner  Hanway,  before  their 
friends  and  neighbors,  with  aiding  and  abetting 
the  murderers ;  and  the  consequence  was,  that 
a  jury  on  which  was  a  son-in-law  of  Mr.  Lewis, 
and  a  Squire  Pownell  presiding  over  them,  did  not 
want  to  hear  his  evidence,  when  they  might  either 
I  be  forced  to  commit  perjury,  or  find  that  Castner 


Hanway  and  Elijah  Lewis  had  incited  to  this  mur- 
der. Nobodv  examined  as  n  witness,  and  vet  this 


|  jury  that  had  no  evidence  but  a  post  mortem  exami- 
nation, did  not  content  themselves  by  saying  he  was 
murdered  by  violence,  but  go  on  to  libel,  without 
evidence,  the  memory  of  Edward  Gorsuch.  a  re- 
spectable citizen  of  the  State  of  Maryland — coming 
there  under  the  invitation  of  the  laws  of  the 
United  States,  under  the  sanction  of  the  Consti- 
tution of  the  United  States,  and  armed  with  the 
process  of  a  Commissioner  of  the  United  States, 
\  and  having  with  him  an  officer  of  the  United 
'  States,  though  he  be  Henry  H.  Kline,  who  has 
|  been  stigmatized  in  this  Court  —  armed  with 
:  that  process,  and  accompanied  by  that  officer.  I 
j  care  not  what  maybe  Kline's  character,  he  stood 
\  as  proud  a  representative  of  the  dignity  of  the 
\  Union,  as  if  he  had  been  General  Winfield  Scott, 
:  at  the  head  of  his  army.    What  did  they  do  ? 
Without  evidence   they  wickedly  asperse  and 
j  libel  the  character  of  Edward  Gorsuch.    Let  me 
|  read  it  to  you.    "  They  do  find  that  the  deceased 
came  to  his  death,  by  a  riotous  attack  on  a 
family  of  colored  persons."    This  jury,  upon 
!  their  oaths  and  without  evidence,  have  stigina- 
.  tized  Edward  Gorsuch,  with  having  participated 
i  in  a  riot — "  he  made  an  attack  upon  a  family  of 
'.  colored  persons,  about  four  o'clock  in  the  morn- 
|  ing,  where  it  was  alleged  fugitives  were."  What 
i  does  that  mean  ?    Does  it  mean  any  thing  ?  It 
'  means  that  under  the  false  pretext  of  seeking 
,  fugitives  slaves,  Edward  Gorsuch  had  gone  to 


204 


TREASON  CASES. 


that  house  about  four  o'clock,  and  made  an  at-  } 
tack  upon  a  family  of  colored  persons.  It  is 
false  from  the  beginning  to  the  end.  His  slaves, 
his  property,  were  there  ;  he  was  armed  with  the 
process  of  the  United  States  ;  the  slaves  were  seen 
issuing  from  that  house ;  they  had  their  friends  and 
allies  there,  armed  for  the  purpose  of  resistance  ; 
and  well  might  the  old  man  say,  when  he  found 
the  laws  of  the  United  States  were  to  be  violated 
in  his  person — and  that  white  men  were  there  ex- 
citing these  blacks  to  rebellion  and  murder,  and 
that  the  process  of  the  United  States  was  laughed 
at  and  derided — well  might  a  change  come  over 
his  countenance,  in  the  language  of  Dr.  Pierce  to 
Squire  Dickinson — well  might  he,  a  brave  man, 
become  calm  and  stern,  and  utter  those  memora- 
ble words,  "  My  property  is  here  and  I  will  have 
it,  or  perish  in  the  attempt." 

We  are  told,  that  when  a  yawning  chasm  open- 
ed in  the  streets  of  Rome,  and  when  in  the 
superstition  of  those  days,  it  was  believed  neces- 
sary to  close  that  chasm,  that  some  bold  soldier 
of  the  republic,  should  plunge  in  and  be  de- 
stroyed; one  Gurtius,  came  fearlessly  to  the 
rescue  of  his  country,  and  in  full  armor,  leaped 
into  the  fatal  cavern,  and  closed  it  with  his 
death.  I  say,  that  Edward  Gorsuch,  had  the 
courage  of  Curtius,  and  finding  that  he  was  there 
with  the  process  of  the  United  States,  and  finding 
there  were  white  men  there,  who  were  opposing 
the  laws;  and  finding  more  than  a  hundred 
armed  negroes,  ready  to  rescue  his  slaves,  by 
murdering  him  and  his  party,  well  might  he 
say,  "he  would  have  his  property,  or  perish 
in  the  attempt."  He  has  perished,  and  if  his 
death,  lamentable  as  it  is,  shall  produce  a 
better  feeling,  and  save  the  country  from  the 
yawning  chasm  of  abolitionism,  which  seeks  to 
engulph  every  Southern  master,  I  say  he  will 
then  have  died  for  the  Union,  and  his  country 
will  be  his  debtor.  Here  I  must  say  that  Miller 
Nott  signed  that  inquest  the  last,  and  as  I  verily 
believe  without  understanding  it.  Now,  gentle- 
men, let  me  review,  as  conscisely  as  possible,  the 
evidence  in  the  case,  showing  the  preconcert  and 
arrangement  about  this  whole  matter.  In  the  first 
place,  we  have  it  in  evidence,  that  on  a  day  or 
two  before  the  fatal  occurrences  of  the  11th  of 
September  last,  old  Mr.  Gorsuch  left  this  city 
of  Philadelphia,  and  went  up  for  the  purpose  of 
communicating  with  his  guide,  who  was  to  in- 
form him  where  his  negroes  were — then  left  in 
the  cars  with  two  of  the  officers  who  were  em- 
ployed by  Mr.  Gorsuch — Agan  and  Tulley — a 
negro  man,  residing  in  Philadelphia,  named 
Samuel  Williams,  now  in  prison.  From  the  evi- 
dence, it  appeared  that  his  object  in  going  was 
to  give  information  of  the  intended  arrest  of  the 
fugitive  slaves  of  Mr.  Gorsuch.  That  there  was 
some  foul  treachery  in  the  city  of  Philadelphia, 
by  which  this  old  man  was  to  be  ultimately 
butchered,  is  as  evident  as  that  the  sun  shines 
at  noon-day.  Who  the  traitors  were,  it  is  not 
material  for  you  to  inquire,  and  is  not  involved 
in  this  issue.  Treason  and  murder  have  been 
committed ;  and  whether  the  information  was 
given  for  bribes,  or  for  purposes  of  blood,  is 
wholly  immaterial. 


What  next?  Samuel  Williams  goes  to  the 
neighborhood  of  Christiana- — he  gets  to  the 
house  of  one  Smith,  by  mistake,  and  tells  him 
that  his  object  was  to  give  information  of  this 
thing — that  he  had  left  a  paper,  in  or  near 
Christiana,  upon  which  were  written  the  names 
of  the  fugitive  slaves,  sought  to  be  arrested. 

Dr.  Cain  says,  that  Peter  Washington  and 
John  Clark,  (both  of  whom  have  escaped  from 
the  cells  of  your  prison  since  this  indictment 
was  found,  by  another  treachery  within  the  walls 
of  that  prison),  told  him,  that  Samuel  Williams 
had  actually  left  a  paper  with  them,  upon  which 
paper  was  written  the  name  of  Josh  and  two 
other  slaves,  and  then  hieroglyphic  dashes  and 
Hartford  county.  In  regard  to  the  county  they 
were  mistaken,  it  should  have  been  Baltimore 
county. 

What  next  do  we  see  ?  Why  we  see  the  whole 
neighborhood  put  in  a  state  of  preparation,  and 
in  a  state  of  resistance.  The  magazine  is  all  pre- 
pared— the  train  is  all  laid,  and  it  only  requires 
the  approach  of  Mr.  Gorsuch  and  his  party  to  fire 
the  powder,  and  bring  about  the  awful  conse- 
quences that  have  ensued.  But  the  counsel  who 
has  spoken  for  the  defence,  say  that  it  was  be- 
cause of  this  night  march,  and  the  disguised 
guide,  and  other  suspicious  conduct  of  the  Gor- 
such party,  that  the  blacks  assembled,  and  they 
would  not  have  done  so  but  for  this  conduct. 
No,  gentlemen,  if  they  had  gone  there  at  12 
o'clock  in  the  day,  marching  upon  the  open  road 
and  going  to  Parker's  house,  there  would  either 
have  been  the  same  or  a  greater  resistance,  or 
notice  would  have  been  given  that  the  parties 
were  near  at  hand,  and  no  fugitives  could  have 
been  arrested.  Here,  I  would  remark,  that 
much  has  been  said  about  going  in  the  night 
time  and  arresting  fugitive  slaves.  Why  it  is  a 
mere  farce,  a  mockery,  a  useless  expenditure  of 
time  and  money,  for  any  man  to  go  into  a 
country  like  that  to  arrest  and  take  his  property 
in  broad  daylight.  He  would  either  be  shot  by 
parties  concealed  behind  hedges  and  trees,  or 
such  notice  would  be  given  that  his  property 
would  flee  away.  I  say  the  evidence  in  this  case 
must  satisfy  you  that  there  was  preparation  to 
resist  Mr.  Gorsuch  the  day  before,  and  that  the 
leaders  of  the  traitors  did  not,  and  could  not, 
know  that  Mr.  Gorsuch  and  his  party  would 
approach  at  dawn  of  day.  The  man  who  went 
up  from  Philadelphia  understood  his  business, 
and  Peter  Washington  and  John  Clark,  under- 
stood their  part.  Can  you  believe  that  a  hundred 
or  a  hundred  and  fifty  men  could  have  been  as- 
sembled there  in  the  country  at  so  early  an  hour, 
except  by  thorough  preconcert  and  arrange- 
ment. Mr.  Gorsuch  and  his  party  proceed  before 
day,  they  go  to  Christiana,  there  the  guide  tells 
them  that  in  one  of  these  houses  near  Christiana 
was  Noah  Buley,  one  of  Mr.  Gorsuch's  slaves,  and 
says  that  the  others  are  at  another  house  kept  by 
Parker  two  miles  off,  and  the  discussion  is  as  to 
whether  they  shall  take  Noah  Buley  first,  and  it 
is  finally  resolved  to  go  to  Parker's  first,  and 
pass  Noah  Buley  for  the  present.  As  they  pass, 
before  daylight,  through  the  woods,  a  bugle 
sounds  not  more  than  half  a  mile  off,  to  the 


UNITED  STATES  V.  HANWAY. 


205 


right,  not  a  horn,  gentlemen,  but  every  witness 
says  it  was  a  bugle.  Dr.  Pierce  says  he  is  confi- 
dent it  was  a  bugle,  and  I  presume  these  gentle- 
men know  the  sound  of  a  bugle  from  that  of  a 
horn.  They  say  it  was  to  the  right,  and  a  wit- 
ness for  the  defence  says,  that  on  Tuesday  and 
Friday  mornings  before  day,  (when  this  was 
Thursday,)  a  horn  is  sounded  to  arouse  the  la- 
borers on  the  railroad.  What  direction  is  that  ? 
Why  except  for  a  veiy  short  distance,  while  pro- 
ceeding in  the  old  valley  road,  it  would  be  to  the 
left  of  the  Gorsuch  party  ;  the  opposite  quarter 
altogether.  For  the  sake  of  the  argument,  how- 
ever, I  am  perfectly  willing  to  say  that  this 
bugle  had  nothing  to  do  with  it ;  that  it  was  not 
to  give  warning  through  the  country,  that  the 
kidnappers,  as  they  are  called,  but  really  the 
masters  with  the  officers  of  the  law,  are  coming 
for  the  purpose  of  asserting  their  rights.  What 
do  we  next  see  ?  About  the  early  dawn  of  day 
they  arrive  at  the  creek,  and  some  refreshment 
is  taken,  and  the  remark  is  made  that  day  is  begin- 
ning to  dawn — the  guide  points  to  the  house  of 
Parker  and  leaves  them. 

The  counsel  have  said  that  going  with  the  dis- 
guised guide,  was  calculated  to  rouse  suspicion. 
Is  there  any  evidence  that  any  body  else  saw 
their  disguised  guide?  No,  the  arrangement  for 
resistance,  was  made  the  day  beforehand,  irre- 
spective of  the  night  march,  or  any  thing  else. 
And,  when  the  party  got  to  the  small  lane,  what 
do  they  see  ?  videttes  are  out.  I  will  for  a  mo- 
ment, go  back  and  show  you  what  has  taken 
place  during  that  time  elsewhere,  for  the  purpose 
of  arousing  and  arming  that  neighborhood. 
Elijah  Lewis  is  a  witness  here  for  the  defendant, 
and  he  is  indicted  for  treason  himself.  He  says, 
that  about  the  early  dawn  of  day,  there  came  to 
his  house,  Isaiah  Clarkson,  the  leader  of  the 
negroes.  Where  does  he  come  from  ?  He  sees 
him  come  across  the  road  from  Scarlett's  house, 
who  lives  opposite  to  Lewis.  Clarkson  comes  to 
Lewis,  and  says,  "I  come  to  say  that  there  are 
kidnappers  at  Parker's  house — that  it  is  sur- 
rounded by  kidnappers,  who  have  come  to  take 
him.  and  I  want  you  to  come  and  see  justice 
done."  How  many  crimes  have  been  committed 
in  the  name  of  justice,  and  to  have  justice  done. 
That  word  justice  has  been  oftener  prostituted  to 
the  most  wicked  purposes,  than  any  other  word  in 
our  vocabulary.  It  is  but  fair  to  presume  that 
Clarkson  had  gone  to  Scarlett's  house,  and  we 
may  judge  what  happened,  by  what  Scarlett  did. 
What  did  Scarlett  do  ?  "  Mr.  Lewis,  did  you  see 
Scarlett  that  morning  ?  I  saw  him  going  towards 
his  barn."  Where  do  we  next  trace  him?  What 
is  his  mission  and  object?  In  this  whole  thing, 
he  is  the  henchman  of  the  clan ;  he  is  to  speed 
the  fiery  cross  through  that  valley,  and  is  to 
proclaim  as  fast  as  his  horse  can  carry  him — 
spurred  on  till  he  is  in  a  foam  —  he  is  to 
proclaim, wherever  he  can  see  a  colored  person, 
the  place  of  muster  at  Parker's ;  to  proclaim 
the  rallying  cry,  "that  kidnappers  are  about," 
and  to  spread  the  intelligence,  for  which  they 
were  prepared  the  day  before — that  the  time 
had  come  when  the  blow  must  be  struck.  What 
does  Scarlett  do  ?    He  goes  to  the  house  of  one 


Moore,  and  sees  there  John  Roberts,  a  colored 
man,  who  was  upon  this  witness-stand — not  con- 
tradicted by  any  witness — not  giving  any  contra- 
dictory accounts,  and  there  Scarlett  says,  when 
asked  what  is  the  matter,  that  he  wanted  to  see 
Moore,  that  there  are  kidnappers  at  Parker's 
house,  and  to  let  all  the  negroes  know  it.  This 
witness,  John  Roberts,  was  probably  one  of  the 
last  reo.uested  by  Scarlett,  to  let  the  colored 
people  know.  The  witness  says  he  went  to  a 
white  man,  Jacob  Townsend,  who  without  paus- 
ing to  ascertain  whether  these  were  kidnappers 
in  the  legal  sense  of  the  term,  or  whethe/  they 
were  officers  of  the  law,  armed  with  the  process 
of  the  United  States — lent  his  gun  to  the  witness 
and  loaded  it^rith  his  own  hands,  and  entrusted 
it  to  the  black  man,  that  he  might  use  it  accord- 
ing to  his  own  discretion.  And  this  Scarlett 
arrives  from  his  mission  of  blood — having  ac- 
complished his  purposes — having  fired  the  train — 
having  sent  many  negroes  there,  but  not  all — for 
I  have  no  doubt,  that  by  the  preconcerted  sig- 
nals, the  communicatian  of  intelligence  was  as 
electric  as  if  the  telegraph  had  sent  it — the  sig- 
nal of  blowing  the  horn,  did  its  part  in  the  work 
of  bringing  those  negroes  together.  This  Scar- 
lett arrives  a  few  minutes  after  the  firing ;  Miller 
Xott  and  Kline  say  that  his  horse  was  in  a 
sweat ;  he  rides  up,  and  he  could  feast  his  eyes 
with  the  fruits  of  his  own  work.  The  first  object 
he  saw,  was  the  wounded  Dickinson  Gorsuch,  who 
lay  bleeding  and  helpless  at  the  foot  of  a  tree, 
and  appealing  to  him  to  hold  his  head,  and  for 
water — and  he  who  had  incited  this  deed  and 
sent  those  murderers  there  to  do  their  bloody 
work,  is  at  first  callous  to  the  appeal :  untii  as 
he  hesitates,  a  sudden  fear  seizes  him  that 
he  may  be  brought  to  a  fearful  account,  for  his 
agency  in  that  day's  work,  and  then  he  reluc- 
tantly goes  and  gets  the  water,  after  repeated 
importunities.  I  come  back  to  the  history  of 
this  case.  When  the  Gorsuch  party  arrived  at 
the  short  lane,  leading  to  Parker's  house,  they 
see  the  videttes  out — the  sentinels  are  posted — 
they  run  back  to  the  house,  to  draw  the  whites 
into  an  ambuscade — who  rush  in  pursuit  to 
Parker's  house.  Old  Mr.  Gorsuch  arrived  at  the 
door  before  Kline,  and  he  saw  two  persons,  and 
they  were  both  his  slaves  as  he  declared — these 
slaves  were  evidently  a  decoy  to  lead  the  party 
into  the  ambush.  The  negroes  are  heard  loading 
their  guns  up  stairs  by  the  Marshal  of  the 
United  States,  Mr.  Kline,  and  his  party:  and 
here  I  say  that  Mr.  Kline  is  as  much  a  Marshal 
of  the  United  States,  as  Mr.  Roberts.  Great  in- 
dignity, according  to  the  views  of  counsel,  has 
been  put  upon  the  regular  Marshal  of  the  United 
States.  It  is  true.  Mr.  Kline,  is  not  the  re- 
gular Marshal  of  the  Eastern  District  of  Penn- 
sylvania ;  but  he  is  a  Marshal  to  execute  the 
process  of  the  United  States.  He  has  been  ap- 
pointed by  Commissioner  Ingraham,  and  has  as 
much  power  to  execute  process  as  Marshal 
Roberts  himself.  While  upon  this  subject,  I 
would  say  that  one  of  the  counsel,  Mr.  Lewis, 
seemed  to  think  that  if  this  process  had  been 
placed  in  the  hands  of  any  body  but  Kline,  the 
arrest  would  have  been  made  without  difficulty, 


206 


TREASON  CASES. 


and  that  the  great  fault  of  Mr.  Gorsuch  and  Mr. 
Ingraham,  was  that  they  did  not  put  the  process 
in  the  hands  of  the  regular  Marshal.  That 
would  be  to  make  the  runaway  slaves  choosers 
and  judgers  of  who  were  to  execute  process. 
Upon  this  sort  of  argument,  when  a  master 
comes  for  his  property,  and  the  Commissioner  of 
the  United  States  is  about  to  issue  his  process, 
he  is  first  to  send  a  messenger  up  to  the  colony 
of  Christiana,  and  inquire  of  the  slaves  and  their 
friends,  what  person  would  be  most  agreeable  to 
them  to  serve  that  process.  I  don't  care,  sir, 
if  it  were  in  their  power  successfully  (which  I 
will  show  they  have  failed  to  do,)  to  blacken  this 
man  Kline,  from  the  crown  of  his  head  to  the 
sole  of  his  foot,  with  every  vice  and  crime,  yet 
he  was  for  the  time  being  the  vicegerent — the 
embodied  representative  of  the  poAver  and  ma- 
jesty of  the  government,  and  as  such,  entitled  to 
enforce  the  laws.  When  Marshal  Kline  attempts 
to  ascend  those  stairs,  what  happens?  He  is 
immediately  repelled  by  violence.  But  before 
that,  as  they  approach  the  house,  Dr.  Pierce  and 
Joshua  Gorsuch  were  stricken  by  missiles  thrown 
from  the  windows,  and  Dr.  Pierce  still  bears 
upon  his  eye,  the  impress  of  the  wound.  Old 
Mr.  Gorsuch  steps  out  of  the  door,  and  is  warned 
that  a  gun  is  pointed  at  him  from  the  upper 
window ;  he  has  only  time  to  step  back,  when 
it  is  discharged,  a  few  inches  from  his  head. 
But  he  was  not  injured  at  that  time.  In  the 
meantime  the  horn  is  sounding  from  the  window 
above.  What  did  that  horn  sound  for  ?  It  was 
not  a  breakfast  horn,  although  Lewis  Cooper  has 
sworn  here  that  about  early  daylight  they  blow 
horns  in  that  neighborhood.  If  that  is  the  case, 
the  laborers  must  go  out  to  work  in  the  dark. 
Breakfast  horns  are  blown  to  recall  them  from 
the  fields  ;  and  when  the  horn  is  blown  at  early 
daylight,  we  must  presuppose  the  laborers  to  be 
working  in  the  fields.  It  is  ridiculous  and  ab- 
surd— there  is  no  truth  in  it — there  is  no  one 
who  blows  horns  at  early  daylight,  for  the  pur- 
pose of  summoning  laborers  from  the  field,  when 
they  are  in  the  house. 

Again,  gentlemen.  What  did  Clarkson  say  to 
Miller  Nott,  when  he  asked  him  what  was  the 
matter?  "Did  you  not  hear  the  horns  blow- 
ing ?"  I  say  that  Clarkson,  the  colored  leader, 
who,  when  frightened  by  the  warning  of  Mil- 
ler Nott,  rescued  Mr.  Gorsuch  from  impend- 
ing death. — A  man  who  could  afterwards  call 
the  infuriated  bands  to  order,  and  then  they 
were  so  still  you  could  not  hear  a  sound.  That 
man  who  had  gone  for  Elijah  Lewis  and  Scar- 
lett, that  man  says  to  Miller  Nott,  "  Why,  didn't 
you  hear  the  horns  blowing?"  What  did  he 
mean?  Why  that  the  horns  being  blown  were 
a  signal,  not  for  breakfast,  but  for  something 
else.  Don't  you  believe  that  the  horn  was  blown 
from  that  house  ;  and  the  blacks  would  not  have 
blown  it,  unless  it  were  a  preconcerted  signal,  and 
could  be  understood  by  those  who  heard  it.  Would 
the  blacks  have  blown  a  horn  from  Parker's  house, 
when  every  body  who  heard  it  would  have  taken 
it  for  a  breakfast  horn  ?  I  am  not  before  an  in- 
telligent jury  to  argue  so  plain  a  proposition  as 
this,  that  that  horn  was  a  signal  to  bring  to  the 


rescue  of  those  in  the  house  the  enemies  of  the 
law,  who  were  in  the  neighborhood.  They  are 
frightened  at  the  ruse  of  Kline,  to  make  them 
believe  the  sheriff  was  near  at  hand  with  a 
posse,  and  they  asked  for  time  and  appeared  to 
be  dispirited,  they  were  afraid  they  might  be  over- 
whelmed before  their  friends  could  arrive.  The 
only  reasonwhy  the  whole  of  that  organization  was 
not  around  the  house  at  that  early  hour  was  be- 
cause it  could  not  be  known  at  what  hour  Mr.  Gor- 
such would  come.  And  in  the  second  place  it  could 
not  be  known  whether  he  would  first  attack  Noah 
Buley's  or  Parker's  house.  But  they  acted  with 
great  rapidity  and  despatch,  the  horn  sounded, 
and  they  asked  for  10  minutes.  It  was  given  and 
they  asked  for  5  minutes  more,  and  it  was  given. 
Before  this  the  warrants  had  been  read,  for  the 
arrest  of  the  fugitive  slaves,  and  the  landlord  of 
the  house  had  refused  to  surrender  them. 

About  the  expiration  of  the  15  minutes,  Han- 
way  appears  at  the  bars,  mounted  on  a  sorrel 
horse,  in  his  shirt  sleeves.  He  is  immediately 
hailed  by  a  shout  of  welcome.  Dickinson  Gor- 
such says  that  he  heard  the  blacks  from  the  win- 
dow above  call  out,  "there  is  somebody  at  the 
bars,"  he  could  not  hear  the  name  mentioned,  but 
immediately  there  was  a  shout,  and  old  Mr. 
Gorsuch  said,  "it  was  now  worse  for  them  that 
they  had  postponed  the  arrest."  He  makes  the 
remark  at  the  time,  seeing  that  the  blacks  had 
become  encouraged  and  were  shouting,  and  beat- 
ing their  clubs  and  guns  upon  the  floor.  Oh, 
but  said  the  gentleman,  the  negroes  were  not  en- 
couraged by  Castner  Hanway's  presence  there ; 
it  was  because  they  saw  other  colored  people 
coming  to  their  rescue.  But  I  will  call  your  at- 
tention to  page  145,  of  the  printed  evidence, 
where  Mr.  Nelson  says  that  the  negroes  came 
up  after  Castner  Hanway.  Kline  says  there  was 
one  Ezekiel  Thompson,  an  Indian  negroe,  came 
up  a  little  after  Castner  Hanway,  and  Nelson 
says,  "they  came  up,  he  cannot  say  how  long 
after,"  and  when  the  party  looked  around,  (ac- 
cording to  the  evidence  of  all  the  witnesses,)  the 
remark  was,  "there  is  somebody  at  the  bars." 
Now,  gentlemen,  we  come  to  the  transaction  as 
it  took  place,  Hanway  is  there,  he  is  at  the  bars; 
though  Lewis  does  falsely  swear  that  Hanway 
never  went  to  those  bars.  He  says  he  got  there 
with  Hanway,  that  neither  of  them  went  to 
the  bars,  but  they  stood  in  the  long  lane.  But 
Dickinson  Gorsuch,  Joshua  Gorsuch,  Dr.  Pierce, 
and  Kline,  all  distinctly  testify  that  when  they 
first  saw  Hanway,  it  was  at  the  bars  on  his  horse. 
What  does  Kline  say?  "Good  morning,  sir."  No 
answer.  "  What  is  your  name  ?  Do  you  live  in 
this  neighborhood?"  "That  is  none  of  your 
business,  and  you  can  find  it  out  the  best  way 
you  can."  Is  not  this  the  exact  language  as 
sworn  to  by  Kline  ?  Was  he  not  there  in  a  tem- 
per and  frame  of  mind  to  give  this  insulting 
answer,  and  refused  to  assist  an  officer  of 
the  United  States.  Has  not  Lewis  proved 
it?  His  own  counsel  admit  he  did  refuse  to 
assist  when  regularly  summoned  by  the  au- 
thority of  an  Act  of  Congress,  and  he  did  refuse 
because  there  was  no  penalty.  Then  I  say,  he 
went  there,  in  a  temper  and  with  a  feeling  to 


UNITES  STATES  V.  HAKTfAY. 


207 


make  him  insult  a  man  who  wished  him  simply 
good  morning.  Hanway  read  the  warrants,  and 
when  asked  to  assist  and  told  of  the  Act  of  Con- 
fess, he  replied  that  he  ''did  not  care  for  the 
Act  of  Congress  or  any  law.  that  the  negroes  had 
a  right  to  defend  themselves,  that  he  (Kline)  could 
not^make  arrests  there,  and  that  he  had  better  go 
home/'  Is  not  that  confirmed  by  another  wit- 
ness ?  Dr.  Pierce,  whose  evidence  will  be  found 
on  page  123.  confirms  Kline  in  his  statement. 
ZSow  I  will  show  you  something  else,  gentlemen, 
and  that  is,  that  'Dr.  Pierce  has  stated  another 
fact  which  'corroborates  Kline  perfectly,  and 
shows  that  Hanway  was  not  there  merely  to 
refuse  to  assist  in  executing  this  process.  That 
would  not  be  treason,  as  I  have  already  ad- 
mitted, although  it  would  be  a  disloyal  act  to 
his  country,  although  it  would  be  a  violation  of 
an  Act  of'  Congress,  even  though  he  has  the 
miserable  plea  that  there  is  no  penalty.  Tet  I 
will  show  you  that  he  has  done  more.  Look  at 
the  conversation  between  Dr.  Pierce  and  Han- 
wav.  Dr.  Pierce  said  to  him,  why  do  you  come 
here  ?  Why  are  you  inciting  these  blacks  'by 
your  presence  ?  Dr.  Pierce  says  by  his  manner 
h.e  could  see  he  was  not  there  acting  the  part  of 
a  good  citizen.  He  asks  why  he  is  there  obstruct- 
ing the  process  of  the  United  States.  He  also  says 
that  although  he  cannot  recollect  all  that  passed, 
yet  the  conversation  between  Hanway  and  him- 
self was -decidedly  angry  on  both  sides.  Kline's 
testimony  is  further  corroborated.  First,  it  is 
corroborated  by  Lewis,  for  Lewis  admits  that 
Hanway  and  himself  refused  to  assist  when  sum- 
moned,* and  this  is  a  part  of  Kline's  statement. 
Kline  made  this  statement  before  Lewis  testified. 
He  made  it  on  this  stand  before  he  could  know 
what  Lewis  would  testify.  It  was  a  part  of 
Kline's  original  statement  and  Levis  corrobo- 
rates so  much  of  it,  but  goes  on  willfully  to  omit 
that  part  of  the  conversation  in  which  Hanway 
said  he  "  did  not  care  for  the  Act  of  Congress, 
or  any  law." 

Secondly.  Kline's  testimony  is  corroborated 
by  Dr.  Pierce,  and  all  the  other  witnesses,  who 
prove  that  at  the  time  he  said  he  would  hold 
these  men.  Hanway  and  Lewis,  responsible. 
He  then  told  the  Gorsuch  party  to  retreat,  when 
he  saw  the  blacks  assembled  in  so  large  a  force, 
and  when  he  saw  what  was  going  to  follow. 
When  he  saw  that  Hanway  had.  read  the  war- 
rants, and  still  continued  to  encourage  the  blacks. 
When  he  saw  these  blacks  loading  their  guns, 
and  arming  themselves  in  the  presence  of  their 
white  friends.  When  he  saw  what  was  to  be  the 
result,  he  tells  Gorsuch  and  his  party,  "let  us 
go :  we  can  do  nothing  here ;  the  force  is  too 
great ;  the  resistance  is  too  great :  let  us  go  and 
you  can  hold  these  men  responsible,  if  they  are 
worth  your  property." 

Their  own  witness,  Lewis,  proves  that  Kline  said 
that.  Almost  every  witness,  who  has  testified  in 
this  case,  and  that  was  present  at  that  time,  has 
stated  this  fact.  What  else  did  Kline  do  ?  To 
show  you  that  these  men  were  there  to  incite 
these  blacks  and  did  incite  them,  what  does 
Kline  do  at  the  time ;  and  the  most  powerful 
corroboration  of  Kline's  evidence  is  found  by 


this  fact.  He  acted  as  a  man  would  act  towards 
such  a  scoundrel  as  Lewis.  He  could  not  follow 
Hanway,  because  he  was  mounted  on  his  horse ; 
but  Levis  being  on  foot,  he  tells  Hutchings  to 
follow  that  man  ;  he  did  that  at  the  time,  so  that 
he  might  see  where  he  went  to  and  who  he  was. 
Hutchings  says  he  did  follow  him  for  some  dis- 
tance, when  he  lost  sight  of  him.  Xow  this  is 
contemporaneous  evidence,  showing  that  Kline 
knew  these  men  were  there  for  treasonable  pur- 

|  poses,  and  that  they  ought  to  be  followed  and 
ascertained,  and  made  accountable  for  it.  Well, 
we  have  another  fact.  Hanway.  as  Kline  swears, 
rode  his  horse  among  the  men,  and  whispered 
something  in  a  low  tone,  which  he  could  not  hear, 
(and  to  which  he  will  n$t  swear),  but  immedi- 
ately they  shouted,  "  that  he  is  only  a  deputy." 
Where  did  they  get  that  fact  from  ?    Why,  Han- 

i  way  had  read  the  warrant,  and  if  you  will  read 

!  it  you  will  find  that  Air.  Ingraham  says  he  does 
deputize  Kline  to  execute  this  process.  .  There- 
fore, if  the  blacks  did  shout  that  he  was  only  a 
deputy,  they  got  that  fact  from  Hanway  when  he 
rode  his  horse  among  them,  and  said  something 
in  a  low  tone.    What  did  they  do  then  ?  When 

!  they  had  received  this  information,  that  Kline 
was  but  a  deputy,  they  immediately  shout  and 
advance.  That  was  the  signal.  Hanway  rides 
his  horse  a  little  way  by  the  orchard  in  the  long 

:  lane,  and  wheels  around  and  calmly  and  delibe- 
rately surveys  the  whole  bluody  work.  Then, 
gentlemen, 

"  At  once  there  rose  so  wild  a  veil, 
Within  that  dark  and  narrow  dell 
As  if  the  fiends,  from  heaven  that  fell, 
Had  pealed  the  banner  cry  of  hell '." 

Then,  as  Dr.  Pierce  says,  they  advanced  sing- 
i  ing  the  hymn  "  We  are  free !"  and  fired.    I  care 
not  what  became  of  Kline.    The  stoutest  heart 
might  quail,  and  brave  men  fly.    But  there  was 
one  braver  than  the  bravest :  there  -was  one  who 
knowing  his  rights,  dared  to  maintain  them,  though 
he  perished  in  the  attempt.    He  was  nobly  sought 
'  to  be  rescued  by  his  son,  who  though  he  could 
have  saved  himself,  returned  to  the  rescue  of  that 
father,  and  was  himself  brought  to  the  brink  of 
the  grave  by  the  desperate  wounds  which  he 
1  there  received.     There  was  another  relative, 
i  who  also  did  what  he  could  to  save  the  old  man ; 
jbut  vain  the  heroic  efforts  of  Dickinson  and 
Joshua  Gorsuch,  putting  their  own  lives  in  dan- 
!  ger,  and  vain  the  calm  and  steady  courage  of 
the  old  man.    He  died  "like  fox  'mong  mang- 
ling hounds."    I  say  you  are  not  here  to  try 
Kline  upon  the  question  of  cowardice,  and  I 
would  like  to  see  some  of  these  witnesses,  who 
have  been  so  very  astute  to  catch  at  the  random 
speeches  of  Dr.  Pierce. — Even  if  he  did  make-such 
speeches,  they  were  made  before  he  knew  all  the 
facts  of  the  case,  and  before  he  could  hear  Kline's 
explanation  of  his  own  situation.    I  would  like 
to  see  some  of  these  same  witnesses,  who  have 
assailed  Kline's  courage,  and  who  chuckle  at  their 
!  own  evidence.    I  would  like  to  see  if  they  would 
have  acted  half  as  bravely  as  Kline  did  under 
the  circumstances.    Gentlemen,  I  do  not  think 
:  that  the  evidence  in  this  c;ise  will  show  that 
I  Kline  acted  like  a  coward.    That  he  might  have 


208 


TREASON  CASES. 


saved  his  own  life  by  jumping  over  into  the  corn- 
field, I  admit;  that  the  danger  was  imminent 
and  justified  the  act,  I  maintain.  He  did  not  fly 
into  the  woods,  as  Elijah  Lewis  has  falsely 
sworn.  I  prove  he  was  in  that  corn-field  by  two 
facts.  One  that  the  son  of  Miller  Nott  saw  Kline 
make  his  appearance  in  the  lane,  and  lead  Dick- 
inson Gorsuch  wounded,  into  the  woods,  and 
place  him  under  a  tree,  where  he  thought  he 
was  safe  until  he  could  find  a  doctor.  He  did 
not  dream  there  was  such  diabolical  malice  on 
the  part  of  these  colored  people,  that  they  would 
come  after  that  wounded  man,  who  was  lying 
smothered  and  choking  in  his  own  blood,  and 
endeavor  to  take  his  remnant  of  life.  That 
Kline  got  into  the  corn-field,  is  proved  by  another 
powerful  fact.  Recollect  that  Miller  Nott  and 
Ms  son  both  say,  that  when  Clarkson  spread  out 
his  hands  he  turned  back  these  men.  What 
then  did  they  do?  They  jumped  over  into  the 
corn-field  and  searched  it.  Why  did  they  do  so  ? 
Why  some  of  them  must  have  seen  Kline  when, 
as  he  swears,  he  got  into  that  corn-field,  and  not 
having  seen  him  come  out  afterwards,  they 
thought  they  would  find  and  kill  him.  Having 
been  disappointed  in  glutting  their  vengeance 
upon  Dickinson  Gorsuch,  they  thought  they  would 
vent  it  upon  a  white  man  in  that  field,  and  one  of 
them  said,  "I  would  as  soon  die  now  as  live." 
Yet  Elijah  Lewis  swears  that  Kline  was  in  the 
woods  before  the  firing  began,  and  he  never  re- 
turned from  the  woods  to  lead  Dickinson  Gor- 
such, and  said  that  if  he  had  done  so,  he  could 
have  seen  it.  But  look  at  another  fact,  to  which 
I  will  presently  call  your  attention  more  fully. 
Elijah  Lewis  tells  you  that  while  Kline  and  Han- 
way  were  talking  together,  the  negroes  were 
about  to  shoot.  That  was  down  near  the  mouth 
of  the  short  lane,  as  Lewis  says.  And  while 
they  were  talking,  Hanway  turned  round  and 
said,  "for  God's  sake  don't  shoot."  Well,  did 
they  shoot  ?  If  this  is  true  why  did  they  not  shoot  ? 
Lewis  says  they  did  not  fire  until  after  Kline 
got  into  the  woods.  At  the  time  then,  when 
they  were  about  to  shoot,  and  when  Hanway 
called  to  them,  Kline  and  Hanway  were  together, 
not  in  the  woods,  but  down  at  the  mouth  of  the 
short  lane,  according  to  Lewis'  statement.  They 
did  not  shoot,  if  you  believe  Lewis,  until  Kline 
had  time  to  get  into  the  woods.  Who  stopped 
these  men  from  shooting  but  Hanway?  They 
obeyed  him,  and  did  not  shoot  until  Kline  had 
gone  up  into  the  woods,  a  very  considerable  dis- 
tance. If  Lewis  is,  therefore,  to  be  believed,  his 
testimony  would  prove  that  the  blacks  were 
under  the  orders  of  Hanway,  to  shoot  when  he 
said  shoot,  and  not  to  shoot  when  he  told  them 
to  hold.  Gentlemen,  Kline  is  also  corroborated 
in  the  other  leading  facts  of  this  case.  That  he 
did  at  Christiana,  on  that  very  day  of  the  Coro- 
ner's inquest,  charge  these  men  with  having  in- 
cited the  blacks  to  murder,  is  perfectly  manifest 
from  the  fact  that  the  jury  would  not  hear  what 
Kline  had  to  say. 

Lewis  Cooper  says  that  he  told  such  various 
tales  that  they  would  not  believe  him.  This  is 
pregnant  evidence  to  my  mind  that  Kline  did 
charge  Hanway  and  Lewis  with  abetting  and  aid- 


ing these  men  to  do  what  they  did,  and  therefore 
the  jury  did  not  wish  to  hear  him.  Oh,  but  say 
the  counsel,  Kline  never  could  have  told  the  truth 
when  he  said  that  Hanway  rode  among  the  men 
and  muttered  something.  Because  Kline  on  that 
or  the  next  day  told  a  witness,  I  think  by  the 
name  of  Lawhead,  that  he  heard  Hanway  order 
the  blacks  to  fire.  You  will  also  recollect 
Alderman  Reigart  testifies,  that  on  the  13th  at 
Christiana,  when  Hanway  and  Lewis  were  ar- 
rested, Kline  used  this  language  to  them.  He 
called  them  "white-livered  scoundrels."  He  said 
he  "  had  begged  for  his  life  and  the  lives  of  his 
men  like  dogs,  and  they  had  not  said  a  word  to 
restrain  the  blacks,  but  on  the  contrary  they  or- 
dered them  to  shoot."  Kline  never  swore  it.  No, 
gentlemen,  but  when  Kline  comes  to  his  oath, 
he  confines  himself  to  facts,  and  he  has  not 
given  utterance  to  his  belief.  But  when  he  was 
speaking  of  -it,  freshly  and  recently  after  the 
transaction,  he  expresses  his  belief  and  opinion 
by  way  of  a  positive  charge.  He  knew  Castner 
Hanway  had  rode  his  horse  among  them,  and 
said  something  in  a  low  tone,  and  they  had 
shouted  he  is  a  deputy,  and  fired  Having  seen 
Lewis,  and  knowing  he  was  a  partner  of  Han- 
way, he  charged  them  both  with  giving  orders  to 
the  blacks  to  fire.  Lewis  promptly  denies  it. 
He  says  I  did  not  give  the  order ;  but  Hanway, 
who  had  ridden  his  horse  among  them,  and  said 
something  in  a  low  tone  to  them,  he  did  not  deny 
it.  Lewis  was  swift  to  deny  it,  and  I  believe  he 
gave  no  such  order,  although  I  believe  he  had 
used  treasonable  language  in  the  presence  of 
these  men,  which  was  calculated  to  incite  them 
to  treason.  Lewis  denies  it  on  the  spot,  but 
Hanway  is  silent  when  accused.  I  admit  Kline's 
language  was  improper.  The  counsel  for  the 
defence,  not  contenting  himself  with  commenting 
upon  that  language,  took  occasion  before  the 
Court  to  denounce  it  in  advance.  1  am  not  here 
to  defend  that  language.  But,  gentlemen,  place 
yourselves  in  the  same  situation,  and  say  if 
there  is  not  some  allowance  to  be  made  for  the 
excitement  of  a  man  who  had  been  outraged  and 
treated  as  he  had.  Say  whether  this  man,  whose 
men  and  companions  had  been  shot  down  in  cold 
blood,  and  some  of  them  in  his  sight,  whose 
party  had  been  scattered  and  broken  up,  so  that 
he  had  to  go  and  hunt  for  those  who  were  sup- 
posed to  be  lost  in  the  woods.  Say  whether 
there  is  not  some  allowance  to  be  made,  when  he 
was  laboring  under  great  excitement,  and  saw 
these  murderers  again  in  his  sight. 

Although  they  prove  that  Kline  had  been  sworn 
three  times  before,  they  have  not  shown  that  in 
either  of  his  examinations  he  has  contradicted 
himself  in  any  particular.  It  would  have  been 
just  as  easy  for  Kline  to  say  from  the  very  be- 
gining,  if  he  were  actuated  with  a  desire  falsely 
to  put  the  responsibility  of  this  affair  upon  the 
shoulders  of  these  men,  as  counsel  have  insinuat- 
ed, it  would  have  been  just  as  easy  for  him  to 
have  sworn  that  he  heard  Hanway  order  the 
blacks  to  fire.  If  Kline  were  perjured  and  did 
not  feel  the  obligation  of  his  oath,  it  would  have 
been  as  easy  for  him  to  have  sworn  to  this  im- 
portant fact,  which  he  believes,  as  to  have  ex- 


UNITED  STATES  V.  HANWAY. 


209 


pressed  that  belief  "before  the  witnesses.  But  he 
has  contented  himself  with  facts,  and  he  has  not 
stated  as  facts  that  which  is  a  matter  of  belief. 
When  charging  them  to  their  teeth- with  it,  he 
stated  the  conviction  of  his  soul  by  charging  Lewis 
and  Hanway  with  having  ordered  the  blacks  to 
fire.  How  did  Kline  act?  Could  any  man 
have  acted  with  more  coolness  under  the  ad- 
verse circumstances.  He  saved  his  life  by  get- 
ting over  into  the  corn-field.  The  bravest  man 
might  have  done  so.  He  succors  the  wounded 
Dickinson  Gorsuch,  and  leads  him  to  the  woods 
in  view  of  the  excited  blacks  and  there  leaves 
him,  to  go  for  a  physician.  He  takes  Joshua 
Gorsuch,  another  of  his  wounded  party,  along, 
and  carries  him  to  Peningtonville.  And  just 
consider,  gentlemen,  the  condition  of  poor  Kline, 
when  he  got  to  the  Brick  mill,  (where  Squire 
Pownell  met  him).  Kline  said  he  had  been  up 
all  night,  and  he  was  exhausted  and  weary,  and 
he  pointed  to  his  pantaloons  which  were  draggled 
in  the  wet  and  dirt.  He  was  weary  and  wanted 
sleep,  having  been  marching  from  Pennington- 
ville  to  Christiana,  through  corn-fields  and  bye- 
ways  to  Parker's  house,  (the  guide  having  taken 
them  by  secret  paths).  He  wanted  a  convey- 
ance for  he  was  weary.  He  goes  on  to  the  store 
with  Joshua  Gorsuch  and  there  cannot  get  a 
conveyance  for  mercy's  sake  or  for  money.  He 
gets  to  Peningtonville.  What  does  he  do  ?  He 
puts  Joshua  Gorsuch  in  the  cars  at  Pennington- 
ville,  and  not  flying  back  to  Philadelphia,  as  he 
would  have  done  if  frightened,  he  goes  immedi- 
ately back  to  Christiana  to  be  present  at  the 
coroner's  inquest.  He  is  there,  a  stranger  among 
the  Philistines,  to  charge  these  men,  Elijah  Lewis 
and  Castner  Hanway,  with  aiding  and  abetting 
in  this  treason.  When  there  he  is  told  we  wont 
believe  you,  we  will  not  hear  you,  we  are  going 
to  stigmatize  the  dead.  You,  Mr.  Kline,  may  go 
away,  although  you  are  a  stranger  to  us  and 
have  in  your  hands  a  process  of  the  United 
States  ;  we  will  not  hear  you.  Such  is  the  lan- 
guage of  this  perjured  jury.  What  does  Kline 
do  ?  While  Lewis  Cooper  is  going  home  and 
getting  ready  to  make  an  excursion  into  Mary- 
land, with  the  body  of  his  father-in  law's  victim, 
Kline  has  the  body  promptly  taken  care  of  and 
sent  home  that  evening  by  the  cars.  What  else 
could  he  do  ?  This  does  not  look  like  a  man 
who  is  afraid  to  tell  the  truth  and  to  do  his  duty. 
Afraid  to  venture  back !  He  goes  the  next  day 
to  the  house  of  Rodgers'  in  the  very  vicinity  of 
this  transaction,  where  there  may  still  be  armed 
bands  ready  to  kill  him  ;  he  goes  to  Rodgers' 
house  and  there  sees  Hanway.  He  goes  the  same 
day  to  search  for  Hutchings  and  Nelson  in  the 
woods,  not  knowing  that  they  had  got  safely  off. 
These  are  not  the  acts  of  a  man  who  will  fly  from 
danger,  and  not  calmly  encounter  it  when  neces- 
sary. But,  as  I  before  said,  you  are  not  impan- 
neled  to  try  whether  Kline  be  a  coward  or  not, 
it  is  a  collateral  point  with  which  you  have 
nothing  to  do.  Kline  is  confirmed  in  almost 
every  particular,  by  some  of  their  own  wit- 
nesses, and  you  can  scarcely  mention  a  point 
where  he  is  not  powerfully  confirmed  by  some  of 
the  defendants'  witnesses.    How  is  he  assailed  ? 


By  twenty-nine  witnesses,  I  think,  (although  I 
paid  very  little  attention  to  these  witnesses  at 
the  time,)  twenty-nine  witnesses,  who  have  come 
here  to  testify  out  of  the  whole  city  of  Philadel- 
phia, in  regard  to  a  man  who  has  been  connected 
with  the  police,  and  in  regard  to  a  man  who 
must  have  been  involved  in  a  great  many  trans- 
actions of  business  ;  they  have  with  all  their  in- 
dustry, managed  to  bring  twenty-nine  witnesses 
to  assail  his  general  character  for  truth  and 
veracity.  Well,  I  say,  I  paid  very  little  attention 
to  them,  because  I  was  informed  that  these  wit- 
nesses would  be  far  outweighed  in  number,  by 
opposing  testimony,  the  most  respectable,  in 
favor  of  his  character. 

Though  I  paid  so  little  attention,  yet  I  heard 
the  most  extraordinary  statement  fall  from  one 
of  the  defendant's  witnesses,  a  witness  whose 
name  I  forget,  and  do  not  care  to  remember, 
who  volunteered  his  testimony  to  the  counsel  for 
the  defence,,  and  who  stated  to  them  he  could 
give  evidence  against  Kline's  character,  and  who, 
when  upon  the  stand,  not  content  with  having 
volunteered  general  testimony,  volunteered  the 
remark,  that  he  could  give  something  else.  We 
told  him  to  tell  it  all. — For  when  you  see  one  of 
these  swift  witnesses,  the  true  way  is  to  gratify 
him ;  and  to  give  him  rope,  and  he  will  hang 
himself.  What  did  he  say  ?  Why,  he  went 
to  Colonel  Lee's  office,  and  Colonel  Lee  was 
busy  looking  at  some  papers,  and  did  not 
listen,  but  the  witness  heard  Kline  speak  about 
this  transaction;  and  when  asked  if  Lewis 
did  not  save  his  life,  he  said,  "Yes,  Lewis  did 
save  my  life."  Well,  how  did  he  do  it?  "I 
got  behind  his  horse,  and  that  is  the  way  my  life 
was  saved."  And  when  asked  to  tell  who  first 
told  the  witness  what  he  had  told  to  Kline,  he 
said  he  could  not  tell  who  he  heard  say  it,  and 
he  cannot  locate  the  story.  Why,  gentlemen,  at 
that  very  time,  one  week  after  this  affair,  Kline 
had  given  his  deposition  at  Christiana  before 
Commissioner  Ingraham,  and  can  you  believe  that 
Kline  stated  any  such  fact ;  that  Kline  would 
have  gone  about,  and  in  Colonel  Lee's  office,  or 
any  where  else,  and  have  uttered  so  base  a  false- 
hood as  this,  namely,  that  Elijah  Lewis  had 
saved  his  life,  and  he  was  on  horseback.  No 
such  conversation  ever  occurred.  This  man  has 
mixed  up  the  statement  of  Dr.  Pierce  getting  be- 
hind Castner  Hanway's  horse,  which  he  had  read 
in  the  papers, — that  is  all,  and  there  is  not  a  word 
of  truth  in  it. 

I  say,  gentlemen,  there  are  few  men  in  the 
situation  that  Mr.  Kline  was, — an  officer  con- 
nected with  the  police  for  a  number  of  years ; 
there  are  few  men  who  might  not  be  assailed, 
and,  as  Marshal  Keyser  says,  there  are  but  few 
men  that  he  has  not  heard  more  against  than  he 
has  against  Kline's  character.  '  This  man,  who 
has  been  so  traduced  and  vilified,  because  it  was 
necessary  for  the  defence  that  it  should  be  done ; 
this  man,  who  had  gone  to  Christiana  to  make 
some  arrests  of  the  traitors;  this  man,  who  has  so 
many  prejudices  against  him — merely  because  he 
wanted  to  try  and  ferret  out  this  transaction,  by 
conversing  with  a  prisoner  at  Christiana,  was  mal- 
treated, abused  and  thrust  out  of  the  room,  by 

27 


210 


TREASON  CASES. 


several  persons  in  conjunction  with  one  of  the  wit- 
nesses, who  was  here  to  assail  his  character.  Now, 
in  regard  to  Dr.  Pierce,  I  think  the  counsel  said 
that  by  the  instruction  of  their  client,  who  de- 
plored as  much  as  any  man  this  unfortunate 
affair,  and  who  was  desirous  that  none  of  the 
feelings  of  the  Gorsuch  family  should  be  wounded, 
they  would  not  impeach  or  say  ought  against 
any  member  of  the  Gorsuch  family.  I  think, 
gentlemen,  that  honorable  feeling  which  was 
proclaimed  in  your  ears,  has  been  most  in- 
consistently carried  out.  How  has  it  been  done  ? 
Is  not  Dr.  Pierce  a  member  of  the  Gorsuch 
family  ?  Is  he  not  a  nephew  of  the  deceased  ? 
Why,  gentlemen,  should .  he  be  assailed,  when 
their  client  instructed  them  not  to  say  aught 
against  the  Gorsuch  family  ?  And  yet  there 
have  been  studious  efforts  made  to  assail  the 
credibility  and  character  of  Dr.  Pierce  before 
you,  by  endeavoring  to  question  and  contradict 
him  as  to  collateral  points,  and  with  regard  to 
the  opinions  he  might  have  expressed  under  the 
excitement  of  the  moment.  I  have  only  to  say, 
that  I  believe  every  word  that  Squire  Dickinson 
has  stated.  Dr.  Pierce  had  no  recollection  of 
his  name,  or  of  meeting  him  in  the  cars.  I  can- 
not but  believe,  that  if  Dr.  Pierce  conversed 
with  the  other  witnesses,  they  have  highly  colored 
his  statement,  and  many  of  these  witnesses  were 
spies.  These  were  merely  opinions  of  Dr.  Pierce, 
and  not  contradicted  by  any  thing  that  Dr. 
Pierce  has  sworn  on  this  subject.  But  it  is 
said  that  Dr.  Pierce  has  shown  himself  deficient 
in  gratitude  to  Castner  Hanway,  and  but  for  him 
he  would  not  have  been  here  on  this  trial ;  and 
Mr.  Lewis,  the  counsel,  reproached  him  because 
he  did  not  feel  a  due  sense  of  the  obligations 
under  which  he  was  placed  to  Mr.  Hanway. 
Why,  gentlemen,  if  Hanway  had  been  frightened 
by  the  responsibility  which  devolved  upon  him 
by  his  previous  acts,  and  had  got  off  his  horse 
and  told  them  to  get  on  and  fly  and  save  them- 
selves, I  say,  that  would  not  have  cleared  him 
from  the  blood  of  Edward  Gorsuch,  which  rests 
upon  him.  After  the  bloody  work  had  been 
completed;  after  he  had  seen  that  blood  had 
been  shed  and  life  had  been  taken,  it  would  not 
have  been  wonderful  if  he  had  done  all  he  could 
to  cloak  the  transaction,  and  to  endeavor  to  save 
himself  by  saving  some  of  those  who  survived. 
But  he  did  not  even  attempt  this.  They  asked 
him  to  do  so,  and  though  there  was  a  wounded 
man  staggering  by  his  side,  whose  brains  might 
have  been  scattered  there  by  the  road  side,  (as 
he  states)  but  that  his  hat  was  thick  and  con- 
tained two  pocket  handkerchiefs  inside  ;  and  who 
implored  Hanway  to  let  him  get  on  his  horse 
behind,  which  would  have  taken  but  a  few 
seconds  to  accomplish.  What  does  he  do  ?  Why, 
when  Dr.  Pierre  is  running  along  side,  in  front 
and  behind  and  every  side  of  his  horse  to  save 
his  life,  and  when  the  negroes  are  shooting  and 
he  thinks  he  is  in  danger,  he  turned  round  to 
them  and  said,  "  Boys,  don't  shoot."  Gentlemen, 
the  shot  were  coming  too  near  to  his  own  dear 
person — there  was  danger ;  and  if  he  had  been 
shot  by  his  good  friends  the  blacks,  it  would  be 


but  fulfilling  the  old  saying,  that  "  he  who  sows 
the  wind  will  reap  the  whirlwind." 

Hanway  then  heartlessly  tells  Dr.  Pierce  and 
Joshua  Gorsuch  that  he  could  do  nothing  for 
them,  put  spurs  to  his  horse,  and  away  he  goes 
light-hearted  and  happy.  He  does  not  return  to  his 
peaceful  home,  but  whither  he  goes  we  know 
not ;  however,  it  was  in  quite  an  opposite  direc- 
tion to  his  own  house  he  went.  Dr.  Pierce  might 
have  expressed  his  belief  as  a  matter  of  opinion, 
but  not  as  a  matter  of  fact,  that  his  life  was 
saved  by  Hanway  in  this  way.    He  believed  that 
getting  behind  his  horse  had  sheltered  him,  he  be- 
lieved Hanway,  turning  round  and  saying  some- 
thing to  the  negroes,  had  turned  back  from  the 
fierce  pursuit  the  largest  portion  of  them.  But 
some  others  followed  him  far  beyond  that  point. 
Hanway  did  not  turn  all  back,  but  went  away, 
and  left  him  still  a  fugitive  and  still  pursued. 
But  though  this  might  have  been  the  fact,  Han- 
way's  motive  was  not  to  save  Joshua  Gorsuch  or 
Dr.  Pierce,  it  was  to  save  himself,  because  it  is 
fair  to  presume  that  he  did  not  want  to  save 
these  parties  whom  he  had  refused  to  take  on 
his  horse,  and  to  whom  he  had  said,  I  can  do 
nothing  for  you.    Now  here  is  an  attack  made 
upon  Dr.  Pierce.    Here  is  an  effort  made  to  im- 
peach him  by  contradicting  his  statements.  Yet 
he  is  one  of  the  Gorsuch  family.    He  saw  his 
uncle  butchered,  and  there  was  such  a  desire  on 
Hanway' s  part  to  spare  the  feelings  of  the  Gor- 
such family,  that  none  were  to  be  assailed  or 
impeached,  and  yet  Dr.  Pierce  is  thus  sought  to 
be  impeached.    Gentlemen,  I  have  only  to  say, 
that  if  any  member  of  the  Gorsuch  family  is  sus- 
ceptible of  impeachment,  I  say  it  should  have 
been  done,  Dickinson  Gorsuch  not  excepted.  I 
say  that  truth  is  greater  than  any  other  con- 
sideration ;  and  if  Castner  Hanway  can  impeach 
any  man  of  that  family,  he  ought  to  have  done 
it,  as  necessary  to  truth  and  justice,  and  he  would 
have  done  it.    In  behalf  of  those  witnesses,  we 
want  no  such  favors,  or  admissions  or  declara- 
tions that  their  feelings  might  be  spared  and 
their  evidence  not  impeached,  from  motives  of 
delicacy. 

Now  let  me  come  to  Elijah  Lewis,  and  very 
briefly.  Gentlemen,  if  ever  there  was  a  witness 
who  broke  down  a  defence,  who  was  a  mill-stone 
around  the  neck  of  the  man  in  whose  defence  he 
appeared,  and  who  dragged  him  down  to  the  bot- 
tomless abyss,  that  man  is  Elijah  Lewis.  What 
does  he  say?  He  was  invited  by  Isaiah  Clarkson 
to  come  and  see  justice  done,  and  he  delivers 
the  same  message  to  Castner  Hanway  which 
Clarkson  had  given  to  him.  He  tells  Castner 
Hanway,  that  Clarkson  had  called  upon  him  to 
go  to  Parker's,  and  see  justice  done.  Hanway, 
while  his  horse  was  being  bridled  and  saddled, 
sits  down  and  eats  his  breakfast.  He  then  rides 
to  the  spot  rapidly,  and  gets  there  before  Lewis, 
but  he  goes  upon  the  same  errand,  and  with  the 
same  intent  as  Lewis.  What  is  Mr.  Lewis's  ob- 
ject in  going  there  ?  I  have  shown  you  what  his 
neighbor  Scarlett's  was  I  have  shown  you  his 
object  was  to  send  the  blacks  there  armed.  Now, 
upon  what  errand  did  Lewis  go  ?   Upon  his  way, 


UNITED  STATES  V.  HAITWAT. 


211 


after  having  summoned  Castner  Hanway,  he  sees 
a  poor  negro,  Jacob  Wood,  digging  potatoes,  and 
tells  him,  "  This  is  no  time  to  be  taking  up  pota- 
toes, when  William  Parker's  house  is  surrounded 
by  kidnappers."  Jacob  Wood  follows  him  to 
Parker's  ;  and  he  goes  alone,  upon  the  invitation 
of  Lewis.  Lewis  gets  this  poor  negro  enlisted, 
though  without  arms,  because  none  were  con- 
venient, though  the  black  man  might  have  found 
a  club  or  a  stone  on  the  ground  at  Parker's, 
convenient,  to  beat  a  man's  brains  out  with. 
What  does  Lewis  do  after  he  gets  there  ?  Ac- 
cording to  his  own  evidence,  he  finds  there  is 
lawful  authority.  He  has  left  his  spectacles  at 
home,  but  he  can  read  the  name  of  Mr.  Ingra- 
ham,  and  is  satisfied  there  is  authority.  What 
does  he  do?  Though  he  went  there  to  do  justice 
to  the  negroes,  he  gets  them  into  the  most  awful 
dilemma  that  they  can  be  placed  in,  and  suffers 
them  to  commit  murder  ;  he  suffers  them  to  com- 
mit robbery,  for  by  some  of  them  the  dead  body 
was  rifled.  He  does  not  tell  those  misguided 
creatures  (some  of  whom  he  had  taken  there,) 
he  does  not  tell  them  that  Kline  had  authority 
for  the  arrest  of  these  slaves,  and  that  resistance 
would  be  criminal.  When  asked  for  his  reasons, 
he  could  not  tell  why  he  did  not  caution  the 
blacks. 

This  man  Lewis  goes  away  and  leaves  these 
colored  people,  whom  he  was  to  befriend,  by 
getting  up  early  in  the  morning,  and  going  one 
mile  and  a  half  before  breakfast  to  see  justice 
done.  He  goes  away  and  leaves  them  to  imbrue 
their  hands  in  innocent  blood.  Is  that  doing 
them  justice?  Should  he  not  at  least  have 
called  for  Clarkson,  the  leader,  who  was  in  com- 
mand of  this  band,  in  order  to  apprise  him  that 
the  officer  of  the  law  was  there  ?  Should  he  not 
have  said  to  some  of  these  men,  "  Take  care  now, 
you  are  about  to  violate  the  law — this  is  no  case 
of  kidnapping?"  He  is  willing  to  let  them  get 
their  necks  into  a  halter  and  cannot  give  a  reason 
for  it.  But  that  is  not  all.  He  says  there  was 
an  inquest  there,  and  that  he  could  identify 
Dorsey,  Thompson  and  another.  He  sees  them 
concerned  in  this  outrage,  he  has  been  called  to 
go  to  a  wounded  man,  and  has  declined,  and 
comes  back  at  nine  or  ten  o'clock  that  day,  sees 
the  dead  body  of  Mr.  Gorsuch ;  sees  Squire 
Pownell ;  sees  that  a  jury  of  inquest  has  been 
summoned  and  are  going  to  Christiana  ;  he  can 
identify  three  of  the  murderers,  and  knows  that 
the  proceeding  on  the  part  of  Mr.  Gorsuch  and 
his  party  was  with  authority  ;  he  knew  then  that 
a  murder  had  been  committed ;  that  a  man  had 
been  murdered  in  the  lawful  prosecution  of  his 
rights,  and  he  knew  who  some  of  these  murderers 
were.  Why  does  he  make  no  accusation  before 
that  Justice  of  the  Peace?  Why  does  he  not 
give  testimony  before  that  Coroner's  Jury?  Let 
any  man  answer  and  tell  me  why.  No,  gentle- 
men, he  cannot  give  testimony  until  here  upon 
this  trial  and  for  the  purpose  of  clearing  his  con- 
federate— the  man  whom  he  had  carried  there, 
invited  to  go  there ;  by  whose  house  he  had 
called  and  to  whom  he  had  delivered  the  message 
of  Clarkson,  to  come  and  see  justice  done.  He 
can  give  no  testimony  for  the  prosecution  and 


the  laws,  which  he  knows  to  have  been  outraged. 
Xor  can  he  say  any  thing  against  the  murderers. 
He  can  suffer  innocent  blood  to  be  shed  and  do 
nothing:  except  that  Hanway  shall  not  be  con- 
victed if  he  can  by  swearing  acquit  him.  This 
man  says  he  is  a  post-master  of  the  United 
States,  having  taken  an  oath  as  such  to  support 
the  Constitution  of  the  United  States — to  sup- 
port that  Constitution,  which,  through  Congress, 
has  spoken  and  commanded  him  to  assist  in  the 
execution  of  the  laws  of  the  country,  whose  man- 
dates he  has  evaded  and  resisted  according  to 
his  own  admission;  and  thereby  perjured  him- 
self in  his  very  oath  of  office,  as  well  as  on  this 
stand — that  man,  a  sworn  officer  of  the  United 
States,  enjoying  its  emoluments,  however  small. 
— He  goes  there — is  summoned  to  assist 'in  the 
execution  of  the  laws,  and  he  does  not  open  his 
mouth  for  the  purpose  of  telling  the  negroes  that 
they  are  acting  against  the  law,  but  he  goes 
away  as  he  tells  you  because  he  is  a  little  alarmed ; 
though  he  could  not  be  alarmed  two  hours  after- 
wards, when  he  came  back.  Why  did  he  not 
then  give  his  testimony  and  endeavor  to  have 
these  men  punished.  No,  gentlemen,  there  was 
no  disposition  for  such  things ;  the  same  spirit 
that  actuated  him  in  telling  Jacob  Woods  "  that 
it  was  no  time  for  taking  up  potatoes,  when  Wm. 
Parker's  house  was  surrounded  by  kidnappers," 
actuated  him  then,  and  he  did  not  endeavor  "to 
bring  to  justice  one  single  man  who  had  imbrued 
his  hands  in  the  blood  of  Mr.  Gorsuch;  and 
those  colored  persons  whom  he  could  have  iden- 
tified are  all  gone. 

Then  again  he  cannot  give  his  reasons,  or  tell 
why  he  did  not  make  a  charge  against  the  offend- 
ers. I  say,  now  if  what  he  stated  is  true  and  if 
one  of  these  colored  men  is  convicted  of 
treason  or  murder,  and  hung, — I  say,  if  Elijah 
Lewis  has  told  the  truth,  the  blood  of  that  color- 
ed man  is  upon  his  soul ;  for  if  Lewis  had  told 
him  that  there  was  authority,  and  that  it  was 
not  a  case  of  kidnapping,  he  might  not  have 
done  that  which  forfeits  his  life.  I  say,  having 
failed  in  his  duty  to  his  colored  friends,  let  us 
see  how  he  acted  towards  these  white  strangers. 
I  asked  him,  did  you  not  go  away  and  leave  the 
Gorsuch  party  in  danger?  and  he  says,  "I 
thought  they  were  coming  away,  they  made  a 
movement  to  come,"  and  yet  in  the  next  breath 
he  says,  "  I  did  give  not  them  a  thought.''  The 
man  who  saw  a  hundred  or  a  hundred  and  fifty 
blacks,  armed  with  every  implement  of  war,  guns, 
pistols,  swords,  and  corn-cutters,  clubs  and 
scythes,  and  saw  these  infuriated  men  about  to 
murder  white  men  in  pursuance  of  their  rights, 
and  backed  by  authority,  that  man  goes  away 
and  does  not  give  "  a  thought  to  the  white  men" 
who  were  there,  one  of  whom  was  immediately 
murdered,  and  three  of  the  others  wounded,  and 
the  whole  party  routed.  Gentlemen,  upon  tes- 
timony so  rotten,  so  corrupt,  so  shamefully  per- 
jured as  this,  I  cannot  for  one  moment  suppose 
an  upright  jury  can  acquit  Castner  Hanway.  On 
the  contrary,  when  "you  see  such  falsehood, 
when  you  see  such  evident  perjury,  it  sinks  the 
case  of  the  defence  deeper  and  deeper.  The 
question  will  be,  why  this  conduct  on  the  part  of 


212 


TREASON  CASES. 


Lewis,  if  he  was  innocent,  and  if  he  and  Castner 
Hanway  went  there  as  friends  for  a  common  ob- 
ject ?  The  evidence  of  Lewis  condemns  both 
equally.  Why  has  he  done  acts  that  he  cannot 
explain  ?  No  answer  can  be  given  but  that  he  is 
a  perjured  man.  But,  independent  of  Lewis, 
there  is  abundant  evidence  to  show  that  Castner 
Hanway  went  there  for  a  purpose  far  beyond  do- 
ing justice  to  the  blacks,  far  beyond  refusing  his 
assistance ;  he  went  there  for  the  purpose  of 
preaching  sedition  and  inciting  men  with  arms 
in  their  hands  to  slaughter  the  officers  of  the 
law.  Now,  gentlemen,  was  there  not  an  organi- 
zation there  ?  was  there  not  a  combination  there? 
was  there  not  preconcert  ?  was  there  not  previ- 
ous notice  and  preparation?  did  not  Scarlett  go 
on  horseback  for  the  purpose  of  collecting  the 
negroes  ?  were  not  horns  blown  for  the  purpose 
of  assembling  them  "as  minute  men?"  was 
there  not  a  complete  organization  in  all  that 
neighborhood  ?  It  is  said,  in  the  first  place,  that 
the  organization  was  for  lawful  purposes,  that  as 
far  back  as  January  preceding,  a  colored  man 
had  been  taken  in  the  night  time  by  violence, 
and  had  never  been  heard  of  since.  That  a  band 
of  men,  not  citizens  of  Maryland,  but  of  that 
neighborhood,  a  band  of  miscreants,  had  gone  to 
Chamberlain's  house  and  carried  away  his  co- 
lored man.  In  the  first  place,  let  us  see  whether 
that  was  unlawful ;  they  have  wholly  failed  to 
show  it,  giving  us  no  notice  of  this  defence ;  they 
have  failed  to  show  that  he  was  a  freeman. 
Their  own  witness  said  he  had  heard  that  he 
came  from  Maryland,  and  that  he  had  only  seen 
him  in  that  neighborhood  eighteen  months,  that 
on  a  certain  occasion  it  was  reported  that  there 
was  a  search  for  runaway  slaves,  and  that  he, 
with  a  number  of  others  disappeared.  I  dont 
think  there  could  be  stronger  evidence  to  satisfy 
any  one,  who  were  runaway  slaves — and  who  were 
not,  than  such  conduct  as  this. 

You  will  see  that  at  such  a  time,  every  man 
who  is  a  runaway  slave  will  put  himself  out  of 
the  way,  while  those  who  are  conscious  they  can 
prove  their  freedom  will  remain.  In  about  three 
weeks  they  came  back,  thinking  the  danger  was 
over.  These  men  came  not  when  the  family  was 
buried  in  sleep,  but  when  there  were  eye-wit- 
nesses ;  they  came  at  night  and  saw  the  negro 
man  in  the  room — they  have  met  one  of  the 
neighbors,  and  they  tell  that  neighbor  not  to  say 
any  thing  about  it,  and  next  they  tell  him  that 
they  are  going  to  Chamberlain's  to  take  the 
colored  man.  No  man,  while  desiring  to  see  the 
lawful  rights  of  the  master  enforced,  is  more 
opposed  to  cruel  and  harsh  treatment  to  these 
negroes  than  we  are  ;  and  I  scarcely  know  a 
Southern  State,  and  I  say  this  in  reply  to  what 
was  said  by  Mr.  Lewis  of  their  treatment  in  the 
South — I  do  not  know  a  Southern  State  in  which 
cruelty  to  slaves  is  not  punished ;  and  the  man 
who  sheds  the  blood  of  a  colored  man  in  the  South 
is  stigmatized,  unless  he  had  justifiable  cause  of 
self-defence.  I  say  there  is  not  a  Southern  State, 
with  whose  laws  I  am  acquainted,  and  certainly 
not  the  State  of  Maryland,  where  cruelty  to  the 
slave  is  not  punished.  That  the  law  there  does 
arm  the  master  with  power  to  punish  the  slave 


when  disobedient,  is  a  fact ;  but  the  correction 
must  be  moderate  and  proportionate  to  the  cause, 
and  if  the  master  shall  cruelly  beat  the  slave,  he 
is  liable  to  an  indictment,  and  if  death  ensues, 
he  is  liable  to  the  same  penalty  as  if  he  had 
killed  a  white  man.    I  regret  that  in  taking  this 
runaway  slave,  there  appears  to  have  been  traces 
of  his  blood,  but  the  extent  of  that  injury  is  not 
known,  it  may  have  been  but  a  slight  wound,  the 
blood  may  have  come  from  the  nose.  The  witness 
says  he  saw  a  pool  of  blood  on  the  porch.  If 
there  was  any  injustice,  or  crime,  these  men 
should  have  been  indicted — they  are  resident  in 
Pennsylvania  and  citizens  of  Lancaster  county. 
Why  are  they  not  indicted  and  sent  to  the  Peni- 
tentiary for  kidnapping  ?    There  is  one  of  the 
defendants'  counsel,  residing  in  the  same  county ; 
but  they  are  still  there  at  large.    Don't  you  be- 
lieve that  in  that  neighborhood  there  were  plenty 
of  men  to  have  had  them  indicted  and  sent  to 
the  Penitentiary,  if  they  had  arrested  a  free 
negro  and  carried  him  into  slavery  ?    What  ob- 
jection then,  is  there  to  that  transaction  ?    Is  it 
that  it  was  done  in  the  night  ?    You  cannot,  as  I 
remarked  before — in  a  settlement  of  that  kind, 
capture  a  runaway  slave  in  day  time — it  would 
be  a  wild  goose  chase  to  go  in  daylight  when  you 
could  be  seen  far  off.    When  gentlemen  take 
offence  at  these  night  marches,  they  virtually 
strike  at  the  exercise  of  the  right  to  recapture. 
The  Constitution  says,  not  that  it  shall  be  done 
in  the  day  time,  but  the  master  can  take  his 
slave  when  and  where  he  pleases.    He  has  the 
same  right  of  recapture  as  in  his  own  State.  It 
is  safer  for  the  master  to  get  the  process  of  the 
United  States,  but  he  has  a  right  under  the  Con- 
stitution, without  the  Act  of  Congress,  which  is 
merely  cumulative  and  protective — he  has  the 
same  right  to  capture  and  seize  the  slave  where 
ever  he  meets  him,  as  he  would  have  in  his  own 
State.    That  is  expressly  the  decision  of  the 
Supreme  Court,  in  the  case  of  Prigg  v.  Penn- 
sylvania, in  16  Peters.    When,  therefore,  you 
allege  that  a  master  has  come  into  Pennsylvania, 
and  illegally  seized  and  possessed  himself  of  his 
slave  without  process,  you  are  to  inquire,  has  he 
done  that  Avhich  he  had  authority  to  do  in  his 
own  State.    You  are  to  look  to  the  laws  of  his 
own  State;  for  the  Supreme  Court  says,  "he 
has  the  same  right  to  repossess  his  slave  here  as 
in  his  own  State."    There  is  but  one  qualifica- 
tion to  that — he  is  to  do  it  "without  a  breach 
of  the  peace  and  without  illegal  violence."  This 
qualification,  that  "he  shall  not  commit  a  breach 
of  the  peace  or  illegal  violence,"  does  not  extend 
to  that  violence  which  he  may  inflict  by  taking 
the  slave  against  his  own  resistance ;  because 
the  Constitution  recognizes  no  right  on  the  part 
of  the  slave  to  resist  his  master.    The  breach  of 
the  peace,  is  as  towards  third  parties.    I  admit, 
that  under  that  clause  of  the  Constitution,  a 
master,   pursuing  his   slave  without  process, 
would  not  have  a  right  to  break   into  your 
house,  or  to  knock  you  down,  if  you  stood  in 
your  door,  and  his  slave  was  behind  you ;  but 
if  he  can  get  that  slave  without  a  breach  of  the 
peace  towards  others,  I  say  he  has  a  right  to 
re-capture  him,  and  the  resistance  of  the  slave 


UNITED  STATES  V.  HANWAY. 


213 


is  not  such  a  breach  of  the  peace  as  is  contem- 
plated. Therefore,  I  say,  that  if  these  men  went 
to  the  house  of  Chamberlain  without  process — 
and  when  they  are  indicted  it  will  be  time  enough 
to  try  that — if  they  did  this  without  committing 
a  breach  of  the  peace,  although  I  regret  and  de- 
plore that  there  should  have  been  females  in 
that  house,  whose  sensibilities  might  have  been 
injured,  though  I  regret  and  deplore  that  the 
slave  should  have  been  injured,  still  I  say  they 
did  not  violate  the  laws  of  the  land. 

There  is  one  remark  I  must  make  in  passing. 
If  there  are  families  in  the  State  of  Pennsylva  - 
nia  who  will  harbor  runaway  slaves,  who  will 
hire  and  employ  these  fugitive  slaves  who  are 
said  to  have  come  from  Maryland,  as  Pennington 
says  this  man  was  said  to  have  done,  if  they  will 
do  these  things,  I  do  think,  when  they  have  not 
been  over  nice  or  cautious  in  finding  out  whether 
the  man  be  a  fugitive  slave  or  not,  that  they  have 
no  reason  to  complain  when  a  gentleman  finds  his 
slave  is  concealed  and  harbored,  and  takes  him 
as  he  can  get  him.  The  feeling  of  my  heart,  the 
disposition  of  my  "mind  is,  that  he  who  employs  a 
man  said  to  come  from  Maryland  without  being 
satisfied  of  his  freedom,  is  himself  guilty  of  the 
first  wrong ;  it  wont  do  for  him  to  say  his  feel- 
ings were  outraged  by  the  arrest  of  a  slave  in 
the  night-time,  when  he  and  his  family  are 
present.  That  is  the  whole  defence  in  this  case ; 
and  it  is  admitted,  that  in  consequense  of  that 
event  an  organization  took  place — I  refer  to  the 
opening  statement  of  counsel — in  which  it  was 
admitted  that  there  was  an  organization,  and 
that  it  originated  in  this  very  circumstance. 
Therefore,  the  organization  is  admitted;  but  it  is 
proved  independently  of  that,  by  the  evidence  in 
chief,  by  the  fact  that  a  multitude  came  there ; 
that  they  assembled  at  the  blowing  of  horns,  and 
that  the  horns  from  that  house  were  responded 
to  from  the  neighborhood.  But  there  was  an  at- 
tempt to  try  to  explain  away  this  organization. 
What  was  the  intent,  what  was  the  purpose  for 
which  it  existed  ?  Was  it  simply  for  the  purpose 
of  rescuing  free  colored  people  about  to  be  kid- 
napped, or  was  it  an  organization  to  resist  who- 
ever might  attempt  lawfully  to  reclaim  a  fugitive 
slave  ?  We  may  show  that  the  intention  of  that 
organization  was,  as  we  allege  it  to  be;  by  proof 
of  what  was  done  when  Mr.  Gorsuch  was  killed, 
as  the  intention  may  be  inferred  from  the  act. 
Why,  Lewis  says  that  he  and  Hanway  went  to 
this  house  because  they  were  informed  by  Clark- 
son  that  Parker  was  going  to  be  kidnapped  ; 
when  they  got  there,  they  read  the  warrants. 
Lewis  says,  he  did  not  know  what  negroes  they 
were;  he  did  not  stop  to  notice  what  slaves,  and 
whose  slaves  they  were.  And  if  you  believe  the 
evidence  on  the  part  of  the  prosecution,  Hanway 
and  Lewis  incited  the  blacks  to  resist,  though 
they  did  not  know  what  slaves  were  there.  They 
certainly  found  it  was  not  Parker  who  was  to  be 
taken.  What  did  the  blacks  do  ?  Was  there  an 
organization  merely  to  protect  freemen  ?  They 
heard  the  warrants  read  at  the  house,  and  re- 
sisted and  refused  to  give  up  the  slaves,  and 
shouted  out  afterwards,  if  you  believe  Kline, 
"  He  is  only  a  deputy -marshal."   The  hymn  they 


[  sang  as  they  marched  forward  to  resist  the  laws, 
;  was  the  hymn,  "  We  are-free  !"  The  slaves  of 
Mr.  Gorsuch  were  there  ;  the  others,  whether 
free  or  slaves,  were  aiding  and  abetting,  and  as- 
sisting them.  Whether  Mr.  Gorsu»h  fell  by  the 
hand  of  one  of  his  own  slaves  or  others  it  is  not 
material  to  inquire  ;  they  were  all  aiding  and  as- 
sisting. So  it  is  manifest  that  this  organization 
was  not  an  organization  for  the  purpose  of  rescu- 
ing free  people  of  color  about  to  be  kidnapped ; 
there  is  no  foundation  for  it,  and  its  legitimate 
object  and  direct  design  was  to  prevent  any 
colored  man,  slave  or  free,  from  being  carried 
into  slavery. 

This  is  said  to  be  no  levying  of  war  ;  and  the 
counsel  for  the  defence  facetiously  said,  that  it 
was  preposterous  to  suppose,  that  eight-and- 
thirty  blacks,  headed  by  a  miller  on  a  sorrel 
horse,  and  with  a  felt  hat,  had  levied  war  against 
the  United  States.  But,  gentlemen,  there  were 
many  more  than  eight-and-thirty  negroes  ;  there 
were  from  one  hundred  to  one  hundred  and  fifty  ; 
the  gentleman  is  very  wide  of  his  mark.  Unfor- 
tunately for  the  justice  of  Pennsylvania,  but 
thirty-eight  have  been  arrested  out  of  that  mul- 
titude. But  cannot  fifty  men,  even,  levy  war 
against  the  United  States  ?  It  is  not  the  raising 
of  a  grand  army  to  overturn  the  liberties  of  your 
country,  and  destroy  the  whole  government, 
that  is  necessary  to  constitute  levying  of  war. 
Suppose  fifty  men  band  together  in  this  city,  to 
resist  the  officers  of  your  custom-house,  so  that 
there  shall  be  no  duties  levied  in  this  city ;  and 
the}r  determine  that  whenever  the  custom-house 
officers  go  to  execute  the  laws  of  the  United  States, 
they  will  resist  and  rescue  the  particular  property 
or  merchandise,  and  they  do  resist  and  rescue  it. 
If  their  purpose  is  not  merely  to  prevent  the 
levying  of  duties  in  a  particular  case,  but  if  the 
general  pui'pose  and  scheme  of  the  organization, 
be  to  prevent  duties  being  levied  in  this  city  and, 
they  proceed  forcibly  to  execute  this  purpose,  I 
say  they  are  guilty  of  treason.  Upon  that  point 
you  will  be  charged  by  their  honors.  I  say  fifty 
I  men  can  do  it ;  and  if  fifty  men  can  resist  the 
laws  of  the  United  States  in  Philadelphia,  fifty 
j  men  can  do  it  in  New  York,  and  in  Boston,  and 
in  Baltimore,  so  that  the  officers  of  the  govern- 
ment cannot  raise  any  revenue.  If  there  be  a 
combination  of  fifty  or  a-  hundred  men  in  Sads- 
bury  township,  whether  white  men  or  black  men, 
it  makes  no  difference ;  whether  the  treason  was 
preconcerted  among  whites  or  blacks,  it  makes 
I  no  difference  ;  if  there  be  that  preconcert,  and 
they  be  allowed  successfully  to  execute  their 
plans  ;  the  same  thing  can  be  done  in  the  next 
township ;  and  fifty  men  can  do  it  wherever  the 
law  is  sought  to  be  enforced ;  and  at  every  point 
where  there  may  be  a  fugitive  slave,  it  will  be  in 
the  power  of  these  men  to  resist  the  laws.  And 
is  the  general  government  to  raise  armies,  and 
march  them  into  the  township  to  put  down 
treason?  It  is  the  combination  accompanied 
with  force,  to  resist  the  laws  ;  whether  the  force 
be  sufficient  to  prevent  the  execution  of  the  law 
or  not,  is  not  the  inquiry.  If  the  conspirators 
be  assembled  in  force,  for  the  general  purpose 
!  of  preventing  the  execution  of  the  law  in  that, 


214 


TREASON  CASES. 


and  all  similar  cases,  in  that  locality,  I  shall  sub- 
mit it  is  levying  of  war.  The  counsel  for  the 
defence  seems  to  think  that  levying  of  war,  is 
only  when  the  whole  country  is  in  danger ;  that 
there  should  be  a  General  with  epaulettes  upon 
his  shoulders ;  and  that  the  miller  cannot  levy 
war,  if  he  has  a  felt  instead  of  a  cocked  hat  on. 
Chief  Justice  Marshall  has  said,  in  Burr's  case, 
it  is  not  necessary  that  any  of  the  persons  should 
be  armed  to  levy  war;  if  the  combination  and 
purpose  be  with  mere  physical  strength  to  resist 
the  execution  of  the  laws,  it  is  a  levying  of  war. 
Let  me  take  it  in  a  military  point  of  view.  Sup- 
pose General  Scott  or  any  other  officer,  is 
commanded  to  garrison  a  fort  in  time  of  war  or 
peace,  (it  makes  no  difference,)  and  a  combina- 
tion of  tifty  or  sixty  men  take  possession  of  the 
fort ;  they  arm  themselves,  they  plant  cannon  on 
its  walls,  and  say  he  shall  not  come  into,  or  take 
possession  of  that  fort  and  garrison  it.  Are  they 
not  levying  war  because  there  are  only  fifty  or 
sixty  men  ?  And  is  there  any  difference  between 
this  case,  looking  at  it  in  a  military  point  of  view, 
and  resistance  to  the  civil  process?  Is  it  not 
the  law  of  the  United  States,  through  its  officers, 
that  is  opposed  ?  No  law  of  treason  applicable 
to  the  case  of  a  military  officer  executing  the 
lawful  authority  of  the  United  States,  but  applies 
to  the  civil  officer.  I  admit,  that  perhaps,  if  the 
object  of  this  party  in  assembling,  was  merely  to 
rescue  the  particular  slaves  of  Mr.  Gorsuch, 
from  feelings  of  affection,  partiality,  or  friend- 
ship for  them,  and  there  was  not  a  general 
purpose  to  prevent  the  execution  of  the  laws  of 
the  United  States,  upon  any,  and  all  fugitive 
slaves  in  that  neighborhood,  then  perhaps  it 
might  not  be  treason ;  because  there  was  no 
general  or  public  purpose  ;  but  if  they  had  only 
acted  in  regard  to  these,  as  they  would  in  regard 
to  any  other  slaves,  then  I  say,  there  is  a  com- 
bination for  a  treasonable  purpose,  namely :  to 
nullify  and  obstruct  the  execution  of  the  laws  of 
the  United  States. 

What  have  I  to  say  in  regard  to  Castner  Han- 
way  ?  It  is  said  that  we  have  failed  to  prove  he 
was  a  conspirator  or  counselled  with  the  blacks, 
or  attended  meetings  for  the  purpose  of  resisting 
the  laws.  I  have  before  remarked  upon  the 
utter  impossibility  of  obtaining  that  sort  of  tes- 
timony, necessary  to  make  out  such  a  case  by 
positive  proof,  and  I  say  it  is  not  necessary. 
Law  is  after  all  but  common  sense  and  common 
justice,  and  because  we  have  no  "States'  evidence" 
who  will  take  the  stand  and  say  he  heard  Castner 
Hanway  conversing  with  these  negroes  and  coun- 
selling them  to  these  things,  is  he  to  be  ac- 
quitted? No,  gentlemen;  you  may  infer  his 
previous  concert  and  understanding,  by  seeing 
what  he  did  upon  that  occasion  ;  you  may  infer 
the  purpose  for  which  he  went  there,  by  looking 
at  what  he  did  when  he  got  there.  But  suppose 
for  the  sake  of  the  argument,  that  Castner  Han- 
way was  as  innocent  as  the  child  unborn,  until 
he  rode  up  to  those  bars — suppose  that  he  never 
had  plotted  treason  in  his  scheming  brain ;  sup- 
pose that  being  born  in  the  quasi  slave  state  of 
Delaware,  as  stated  by  his  counsel,  where  he  lived 
till  he  was  five  years  old,  and  that  he  had  there 


suckled  with  his  mother's  milk  a  love  for  the 
institutions  of  slavery — and  I  wonder  the  coun- 
sel did  not  go  further,  and  say  he  was  a  strenuous 
advocate  of  slavery ;  suppose  he  went  to  those 
bars  without  a  taint  of  abolition  feelings,  merely 
as  a  spectator — still  we  shall  request  the  charge 
from  the  honorable  Court  upon  this  point,  that 
if  there  was  a  band  of  conspirators,  then  and 
there  assembled  for  treasonable  purposes,  and  he 
did  then  and  there  for  the  first  time  connect  him- 
self with  that  band,  by  inciting  and  encouraging 
them  by  words,  though  he  struck  no  blow,  he  is 
as  morally  and  legally  guilty  as  if  he  had  devised, 
concocted,  and  originated  the  whole  treason. 
That  is  the  law  of  treason.  Will  you  tell  me,  that 
if  I  see  an  army  marching  against  my  country- 
men— if  I  see  a  band  of  traitors  marching  with 
arms  in  their  hands,  to  overturn  the  laws  of  the 
Union — if  I  chance  to  come  up  at  the  time  of  the 
encounter,  and  cheer  them  on  by  words  and 
speeches,  that  I  am  not  a  traitor  in  heart  and 
act,  as  deeply  dyed  in  the  wool  as  if  I  were  their 
leader.  Arms  are  not  necessary  to  make  trea- 
son. I  put  it  to  this  jury  whether  you  have 
such  an  amount  of  credulity  as  to  believe  that 
these  colored  persons,  dwelling  in  Sadsbnry 
township — looking  to  white  counsel  and  protec- 
tion— saying  from  the  window  of  Parker's  house 
on  that  morning,  that  they  wanted  to  send  to  see 
a  white  man,  a  Mr.  Pownell;  Clarkson,  their 
leader,  going  off  early  in  the  morning  to  Lewis 
and  to  Scarlett,  white  men,  that  they  might 
come  and  see  justice  done;  looking  to  white 
succor  and  counsel ;  I  ask  you  if  you  believe 
that  this  band  of  blacks  would,  in  broad  day- 
light, with  arms  in  their  hands,  have  fired  upon 
Mr.  Gorsuch,  in  the  presence  and  view  of  Cast- 
ner Hanway,  unless  they  knew  they  were  in  no 
danger  from  him  ?  Can  you  believe  it  ?  They 
received  him  with  a  welcome  shout;  and  if  you 
believe  our  witnesses,  they  said  from  the  window 
"there  is  somebody  at  the  bars;"  they  men- 
tioned the  name,  though  it  was  not  heard  dis- 
tinctly. You  see  the  blacks  coming  up,  some  on 
horseback  and  some  on  foot,  loading  their  guns 
in  his  presence  and  before  his  eyes ;  you  heard 
him  say,  if  you  believe  Pierce,  "that  they  have 
a  right  to  defend  themselves,  and  that  you  need 
not  come  here  to  make  arrests."  You  hear  him 
get  into  an  angry  altercation  with  Dr.  Pierce, 
and  Dr.  Pierce  charges  him  on  the  ground  with 
inciting  the  negroes,  and  doing  nothing  to  re- 
strain them,  and  that  man  living  in  the  neigh- 
borhood ;  and  you  hear  him  say  much  more  if 
you  believe  Kline — you  see  him  calmly  wheeling 
his  horse  around,  to  witness  the  massacre  of 
white  men.  I  need  not  go  over  the  other 
grounds  ;  refusing  to  assist  and  leaving  them  to 
their  fate  ;  you  have  it  all  in  evidence,  and  you 
have  in  your  hands  the  fate  of  Castner  Hanway, 
so  far  as  the  facts  and  evidence  are  concerned. 
Before  I  conclude  I  must  notice,  representing 
the  State  of  Maryland  as  I  do  here  in  part,  that 
gross  and  atrocious  charges  have  been  brought 
against  my  State.  I  had  not  expected  it  from 
the  courtesy  of  the  bar ;  I  supposed  we  would  be 
able  to  proceed  harmoniously ;  for  even  if  Mary- 
land had  not  authority  from  the  general  govern- 


UNITED  STATES  V.  II  AN  WAT. 


215 


ment,  she  had  a  right  to  come  here  and  investi- 
gate these  facts  over  the  grave  of  her  murdered 
son.  I  had  expected  she  would  have  been  treated 
courteously  ;  I  thought  it  was  not  necessary  for 
the  defence  of  this  man,  nor  for  the  position  of 
his  counsel,  that  the  State  of  Maryland  should 
be  insulted  and  traduced — and  yet  she  has  been 
charged  with  "thirsting  for  the  blood  of  this 
man."  No,  gentlemen,  she  thirsted  for  nothing 
but  the  pure  and  undented  fountains  of  justice, 
"  as  the  hart  panteth  for  the  water  brook  in  the 
desert."  She  has  been  charged  by  Mr.  Lewis 
with  desiring  to  hang  a  Pennsylvanian,  because 
she  cannot  hang  an  abolitionist. 

Gentlemen,  I  know  not  how,  with  a  proper  re- 
spect for  the  Court  and  my  own  position  here, 
to  characterize  all  such  imputations  on  my 
State ;  I  can  but  speak  the  feelings  of  scorn  and 
detestation  with  which  I  regard  such  low,  false, 
grovelling  and  contemptible  imputations  upon 
the  State  of  Maryland.  Gentlemen,  her  banner 
is  untarnished — she  is  not  here  in  this  court  of 
justice  because  she  thirsts  for  revenge — it  is 
false  to  impute  any  such  thing  to  her.  She  is 
here,  looking  as  a  mother  should,  to  see  that  her 
first  duty  is  discharged  :  the  duty  of  protecting 
her  children.  A  second  child  of  hers  has  been 
immolated  upon  the  soil  of  Pennsylvania,  by  this 
demon  of  discord,  which  threatens  the  perpetuity 
of  our  Union.  Is  she  to  be  insulted  here  ?  Is 
that  the  way  you  discharge  justice  here — that 
the  counsel  for  the  prisoner  are  to  insult  a 
sovereign  state,  because  her  people  have,  by 
meetings  and  otherwise,  called  upon  her  highets 
executive  officer  to  send  representatives  here, 
one  of  whom  I  am  ;  and  for  fear  that  I  was  a 
prejudiced  witness,  our  Governor  has  associated 
with  me  a  son  of  Pennsylvania,  occupying  a 
high  position  in  the  councils  of  the  nation  ;  and 
we  are  all  here  gentlemen,  not  as  Marylanders, 
but  representing  the  common  country — the  com- 
mon United  States — under  the  flag  of  that 
Union— in  the  Court  of  that  Union — in  this  Court 
where  justice  presides  upon  her  eternal  seat. 
We  are  here  with  the  sanction  of  the  general 
government,  and  under  the  control  of  the  District 
Attorney,  who  has  the  power  at  this  moment,  if 
he  thinks  this  prosecution  should  be  stopped,  to 
say  so,  and  there  is  an  end  to  it.  Yet  my  State 
is  to  be  insulted :  a  collateral  issue  is  to  be  got 
up  ;  the  prejudices  of  the  jury  are  to  be  inflamed 
by  fierce  attacks  upon  the  State  of  Maryland. 
My  State  fears  not — she  is  not  to  be  turned  aside 
by  denunciations  or  assaults  ;  she  is  here  fearless 
and  undaunted,  contending  for  justice  and  for 
nothing  else.  If  you  believe  and  can  be  satisfied 
that  this  man  is  innocent,  acquit  him,  but  do  it 
honestly  and  conscientiously,  regardless  of  praise 
or  censure.  The  people  of  Maryland  will  judge 
for  themselves,  they  will  look  at  the  evidence 
and  facts.  If  they  differ  from  you  it  is  for  them 
to  resolve  what  they  will  do.  I  have  discharged 
my  duty,  and  the  sovereign  people  of  Maryland 
will  act  for  themselves,  i  have  but  little  to  say 
to  your  honors  upon  the  law  of  this  case,  for 
your  honors  must  be  wearied  with  the  legal  dis- 
cussions which  have  already  taken  place. 


Judge  Grier.  Mr.  Brent  if  you  feel  worn 
out  you  can  take  a  respite  at  any  time. 

Mr.  Brent.  No,  sir.  In  a  few  moments  I  can 
conclude  what  I  have  to  say.  This  is  alleged  to 
be  so  small  an  outbreak  in  Lancaster  county,  that- 
war  cannot  be  said  to  have  been  levied.  It  was 
but  the  other  day  that  I  saw  it  stated  in  one  of 
the  Northern  papers,  that  "  this  battle  of  Christi- 
ana was  the  first  battle  fought  with  carnal  wea- 
pons upon  the  soil  of  the  Free  States,  and  that 
the  battles  of  the  Revolution,  however  well  in- 
tended, had  proved  in  the  result  to  be  nothing  but 
the  battles  of  slavery."  And  yet  this  battle,  w  hich 
according  to  the  view  of  these  fanatics,  is  a  matter 
for  sympathy  and  glorification,  for  aid  and  com- 
fort in  those  who  are  accused  of  being  partici- 
pants in  it,  is  now  by  the  counsel  of  one  of  the 
parties  implicated  and  arraigned  here,  to  be  too 
inconsiderable  and  too  trifling  an  affair  to  rise  to 
the  dignity  of  treason.  I  presume  the  first  bat- 
tles of  the  Revolution,  the  battles  of  Lexington 
and  Concord,  might  have  been  disposed  of  in  the 
same  way  in  London  ;  and  it  was  doubtless  said 
that  the  force  engaged  in  those  skirmishes  was  too 
small  to  shake  the  majesty  and  strength  of  the 
British  Lion.  The  same  thing  might  have  been 
said  about  the  Western  insurrection.  There  a 
portion  of  the  people  of  four  counties  arrayed 
themselves  against  the  laws  of  the  United  States, 
and  upon  the  marching  of  an  army  into  that 
country  the  insurrection  vanished  without  a  bat- 
tle being  fought ;  it  was  dissipated  like  the  mist 
of  the  morning  before  the  rising  sun ;  yet  that 
was  held  to  be  treason.  And  so  on  the  occasion 
of  the  Northampton  outbreak.  There  I  believe 
only  a  portion  of  the  people  of  one  county  were 
arrayed  in  armed  opposition  to  the  execution  of 
the  law  of  Congress,  the  taxation  of  houses.  I 
believe  in  the  latter  case  nobody  was  killed,  for 
in  the  charge  of  the  Judge  to  the  Jury  he  re- 
marked, if  any  body  had  been  killed  they  would 
have  added  murder  to  the  crime  of  treason. 
Your  honors  will  observe  that  the  whole  law  of 
treason  is  clearly  laid  down  in  the  decision  of 
Judge  Patterson,  in  the  case  of  Vigoll :  State 
Trials,  175;  but  I  will  merely  read  a  passage  of  it. 

*  *  A  more  condensed  and  correct  definition 
of  treason  could  not  be  given.  I  do  not  under- 
stand by  that  that  the  parties  must  know  of  an 
"  Act  of  Congress."  I  do  not  understand  that 
the  parties  must  organize  expressly  to  defy  the 
execution  of  a  given  "Act  of  Congress."  They 
may  be  perfectly  and  actually  ignorant  of  any 
such  law,  yet  if  they  have  combined  together  by 
force  and  approbation  that  which  Congress  has 
said  shall  be  done,  and  they  resist  it,  then  the  ob- 
ject they  have  in  viewis  to  oppose  the  law,  and  it 
is  treason.  I  will  show  your  Honors  that  ignorance 
of  the  law  makes  no  difference,  as  expressly  ruled 
in  Fries'  case  State  Trials,  596.  I  also  read  from 
page  480  State  Trials.  Also  from.pages  589, 191 
and  2,  of  the  same  authority. ,  And  above  all  from 
the  opinion  of  Judge  Chase  on  the  second  trial  of 
Fries,  page  634.  Now,  as  to  the  two  witnesses  to 
the  overt  act.  By  the  overt  act  I  understand 
the  levying  of  war.  That  is  the  overt  act,  and 
it  must  be  proved  by  two  witnesses  that  the  war 
was  levied.    The  connection  of  the  prisoner  with 


216 


TREASON  CASES, 


the  overt  act  may  be  made  out  by  circumstances. 
I  will  suppose  this  case.  An  insurrection  takes 
place,  a  treasonable  insurrection,  and  a  battle  is 
fought.  A  party  is  put  upon  his  trial.  Two 
witnesses  have  seen  him  present,  but  only  one 
saw  him  actually  engaged  in  the  fight ;  and  yet 
he  was  found  when  arrested  to  have  a  commission 
on  his  person  as  an  officer  of  the  rebel  army, 
would  it  be  possible,  the  overt  act  of  the  battle 
having  been  proved  by  numerous  witnesses,  for 
the  party  to  escape  merely  because  two  witnesses 
did  not  see  him  engaged  in  the  fight.  I  will 
show  your  honors  that  the  quo  animo  in  Freas' 
case,  was  ruled  to  be  susceptible  of  proof  like  any 
other  fact.  Upon  the  same  point  it  is  decided 
that  words  are  admissible  to  show  the  intent  of 
the  party  in  joining  the  traitors.  See  the  case  of 
the  Republic,  against  Martin  in  1st  Dallas,  33. 
And  in  order  to  show  your  Honors  that  when  war 
is  actually  levied,  any  person  who  is  present 
aiding,  abetting,  assisting,  or  inciting,  is  as  guilty 
of  the  treason  as  if  he  had  been  an  original  party. 
I  will  refer  you  to  the  State  Trials,  635. 

I  have  only  one  word  to  say,  with  regard  to 
the  character  of  this  conspiracy.  I  do  submit, 
your  honors,  that  it  is  no  more-  competent  for 
an  assembly  of  refugee  slaves  to  organize  for  the 
purpose  of  resisting  the  execution  of  the  laws  of 
the  United  States,  than  it  would  be  for  a  com- 
pany of  white  men ;  and  that  if  there  be  an  armed 
assembly  of  colored  persons,  whether  free  or 
fugitive  slaves,  to  resist  by  open  force  and  vio- 
lence, the  execution  of  the  laws  of  the  United 
States,  that  every  one  of  them  are  guilty  of 
treason.  It  cannot  be  modified  as  protecting 
themselves.  But  if  it  be  more  particularly 
to  protect  every  fugitive  slave  who  may  be  in 
the  neighborhood,  or  in  a  particular  town,  from 
being  arrested  and  carried  back  into  slavery  under 
the  laws  of  the  United  States,  it  is  just  as  much 
treason  as  if  whites  had  committed  it.  If  in 
local  districts  the  law  was  sought  to  be  enforced, 
and  it  was  successfully  resisted,  as  in  this  in- 
stance, government  would  have  to  support  its 
civil  process  every  where  with  a  standing  army. 

I  hold  that  any  combination  like  this,  of  colored 
and  white  persons,  to  prevent  the  execution  of 
the  Fugitive  Slave  Law,  is  treason.  In  this  par- 
ticular case,  if  the  jury  believe  our  evidence,  this 
combination  and  concerted  action  is  not  confined 
to  runaway  slaves,  but  extended  to  free  colored 
persons,  and  in  it  are  involved  at  least  four  white 
men,  Scarlet,  Lewis,  Castner  Hanway,  and  Jacob 
Townsend.  If,  therefore,  the  jury  find  that  this 
combination  was  formed,  not  merely  for  the  pur- 
pose of  preventing  the  legal  arrest  in  a  particular 
case,  but  was  for  the  purpose  of  resisting  every 
man  who  came  armed  with  the  process  of  the 
United  States,  to  enforce  the  laws  of  the  United 
States,  in  respect  to  fugitive  slaves,  and  that 
these  parties  did  in  this  instance  what  they 
only  would  have  done  if  anybody  else  had  come 
for  his  negroes  ;  that  the  exhibition  of  the  war- 
rants by  Kline,  did  not  make  any  difference  or 
arrest  that  organization,  which  was  antagonistic 
and  hostile  to  the  execution  of  the  laws  of  the 
United  States,  then  it  is  a  treasonable  assembly, 
and  being  designed  to  be  attended  by  force,  it  is  a 


levying  of  war,  and  the  parties  are  all  involved 
in  the  guilt  of  treason.  I  do  not  know  that  I 
can  add  any  thing  more  to  the  law  of  the  case. 
I  am  satisfied  that  your  honors  have  sufficiently 
investigated  it,  and  I  can  but  add  little  to  the 
researches  of  the  Court  upon  this  question.  In 
conclusion,  I  would  observe,  that  if  this  armed 
resistance,  by  a  band  of  one  hundred  men,  be  not 
treason,  because  the  object  and  design  are  not 
public,  then  an  army  of  ten  thousand  blacks  may 
be  raised  in  the  free  States  for  armed  resistance 
to  this  law  of  Congress,  and  it  would  not  be  a 
case  of  treason. 

Mr.  John  M.  Read,  on  behalf  of  the  defence, 
spoke  as  follows : 

May  it  please  your  Honors,  and  Gentlemen  of  the 
J ury — 

The  evidence  on  both  sides  having  closed,  a 
very  long,  elaborate,  and  very  able  speech,  has 
been  just  finished  by  my  learned  friend  the 
Attorney-General  of '  the  State  of  Maryland  on 
the  part  of  the  prosecution.  To  his  very  elo- 
quent remarks  I  listened  with  great  attention, 
but  I  must  confess  I  was  entirely  taken  by  sur- 
prise by  one  of  his  positions,  which  he  pressed 
with  great  vehemence  and  force,  and  that  was 
that  the  Fugitive  Slave  Law  was  unconstitu- 
tional. I  never.expected  to  hear  from  a  Southern 
man,  that  a  law  framed  and  passed  by  their  own 
votes,  and  intended  to  secure  their  property  in 
three  millions  of  human  beings,  'was  not  the 
law  of  the  land;  but  that  they  were  bound  to 
look  only  to  the  provisions  of  the  Constitution, 
stripped  of  all  laws  made  to  carry  it  into  execu- 
tion, and  under  the  Constitution  alone,  without 
law,  and  against  the  express  enactments  of  the 
Fugitive  Slave  Law,  to  take  their  property  by 
force  wherever  they  can  find  it. 

I  never  expected  to  hear  such  a  proposition 
gravely  stated  on  the  part  of  the  prosecution, 
especially  in  a  Court  of  the  United  States,  and 
in  a  proceeding  where  a  preliminary  question  was 
put  by  the  counsel  of  the  Government  to  the 
jurors,  whether  they  had  formed  an  opinion  that 
this  Act  of  Congress  was  unconstitutional.  I 
understand  it  to  be  the  foundation  of  this  prose- 
cution, that  there  are  two  laws  of  the  United 
States,  to  prevent  the  execution  of  which,  Castner 
Hanway  has  levied  war  against  the  general 
Government.  This  is  the  crime  for  which  he  is 
now  on  trial;  and  the  overt  acts  laid  in  the 
indictment,. are  merely  those  open  deeds  which 
are  the  evidence  of  the  actual  levying  of  war, 
and  which  must  be  proved  by  two  witnesses  to 
fix  the. charge  of  treason  upon  the  prisoner  at 
the  bar. 

I  will  explain  what  I  mean,  for  T  do  think  if 
such  doctrines  are  to  be  preached  in  Pennsyl- 
vania— (Mr.  Brent  here  interrupted  Mr.  Read, 
and  said,  I  am  unwilling  that  my  position  shall 
be  misunderstood  by  the  gentleman.  I  merely 
desire  to  define  my  position ;  I  never  said  aught 
that  looked  to  such  an  expression  of  opinion, 
that  the  Fugitive  Slave  Law  was  unconstitu- 
tional. I  said  it  was  merely  an  additional  secu- 
rity, perfectly  legitimate  and  constitutional,  and 
an  additional  security  to  that  great  right  of  re- 
capture and  repossession  which  the  master  had 


UNITED  STATES  V.  HANWAY. 


217 


under  the  Constitution  itself.)  Mr.  Head — Now 
the  gentleman  is  correct  no  doubt  as  to  what  he 
thinks  he  said,  but  I  call  the  attention  of  the 
Court  and  jury  to  the  provisions  of  the  Consti- 
tution and  of  the  Fugitive  Slave  Law,  and  to  the 
rights  of  the  master  under  them,  and  the  alleged 
exercise  of  those  rights  by  kidnappers  in  the 
case  of  an  unprotected  female,  Mrs.  Chamber- 
lain. I  understood  the  learned  Attorney-General 
of  the  State  of  Maryland,  whom  I  am  proud  to 
call  my  friend,  to  contend  that  this  gross  outrage 
upon  the  sanctity  of  the  private  dwelling  of  a 
citizen  of  Pennsylvania,  was  legally  committed 
under  this  clause  of  the  Constitution,  although 
neither  the  master  nor  his  attorney  were  pre- 
sent— the  actors  in  it  had  no  warrant  or  authority 
of  any  kind  from  any  one — and  the  man  was 
beaten,  wounded,  tied,  and  carried  into  perpetual 
slavery,  without  even  the  form  of  a  hearing  be- 
fore a  Commissioner  or  Judge  of  the  United 
States.  (Mr.  Brent,  "He  was  a  slave!")  Slave 
or  freeman — does  that  give  any  man  a  power  not 
to  be  controlled  by  the  constituted  authorities  of 
the  country  ?  Does  it  authorize  him  to  go  into  the 
peaceful  and  quiet  dwelling  of  a  citizen  of  Penn- 
sylvania, under  cover  of  night,  with  an  armed 
force,  no  master  present,  and  with  no  process  of 
law,  strike  down  the  light,  seize  the  unoffending 
black  by  the  throat,  put  pistols  to  his  head,  and 
terrify  a  helpless  and  unprotected  family  ?  Does 
it  authorize  a  band  of  kidnappers,  man-stealers 
by  profession,  some  of  whom  have  just  emerged 
from  the  walls  of  a  prison,  thus  to  violate  the 
sanctity  of  a  private  dwelling,  in  order  to  take 
this  poor  and  defenceless  human  being,  carry 
him  into  a  slave  State,  and  sell  him  into  per- 
petual slavery? 

If  that  is  the  construction  put  upon  the  Fugi- 
tive Slave  Law  by  our  Southern  brethren,  instead 
of  its  being  a  measure  of  peace  between  the  North 
and  the  South,  it  will  be  only  an  element  of  dis- 
cord ;  and  I  do  say,  that  it  will  never  be  submitted 
to  in  the  State  of  Pennsylvania.  We  hold  our- 
selves bound  by  the  Constitution  and  by  the  laws 
of  the  land.  We  have  told  the  Court  in  advance 
that  we  never  intended  to  dispute  the  constitu- 
tionality of  this  law,  and  we  shall  hold  the  United 
States  and  the  State  of  Maryland  to  the  same 
sound  doctrine. 

We  do  not  go  to  the  jury  upon  the  ground  that 
this  law  is  unconstitutional,  but  upon  the  only 
true  principle  that  our  client,  our  injured  client, 
who  has  been  torn  from  his  family  and  friends 
and  immured  in  a  dungeon,  his  little  property 
swept  away,  and  with  no  earthly  treasure  left 
save  a  beloved  partner,  who  feels  for  him  in  the 
hour  of  his  deepest  affliction,  is  as  innocent  and 
pure  as  any  man  in  this  Court-room. 

If  we  in  Pennsylvania  are  bound  to  obey  the 
Fugitive  Slave  Law,  is  not  the  Southern  master 
bound  to  obey  it  also  ?  Has  he  the  right  secured 
to  him  by  the  Constitution,  that  in  the  darkest 
midnight  he  may  enter  into  the  private  dwelling 
of  a  citizen  of  Pennsylvania,  and  proceed  with 
violence  and  outrage  to  enforce  his  alleged  rights? 
and  is  this  what  the  Supreme  Court  of  the  United 
States  in  Prigg  vs.  The  Commonwealth,  calls  a 
peaceable  manner  ?    Is  not  the  old  man  unable 

28 


to  protect  himself,  insulted  and  pushed  aside, 
while  the  poor  frantic  female  rushes  down  to  carry 
her  father  up  stairs  from  the  unfeeling  ruffians, 
who  have  violated  the  sanctity  of  her  fireside  ? 

Such  is  not.  the  law  of  the  land.  Further,  the 
Southern  master  who  comes  for  his  slave,  when 
he  has  seized  him,  is  bound  to  carry  him  before 
a  Commissioner  or  Judge  of  the  United  States, 
and  to  prove  his  property  according  to  the  forms 
of  law.  What  was  the  avowed  object  of  passing 
this  law  ?  The  object,  as  far  as  I  could  understand 
it,  was  not  only  to  secure  the  rights  of  property 
to  the  South,  but  to  protect  free  colored  people, 
in  a  free  or  slave  State,  from  being  carried  off 
into  slavery. 

The  position  advanced  by  the  learned  gentle- 
man in  relation  to  this  scandalous  outrage  upon 
the  rights  of  a  citizen  of  Pennsylvania,  and  this 
equally  gross  violation  of  the  enactments  of  the 
Fugitive  Slave  Law,  is  not  the  law  of  the  land ; 
and,  I  say  with  entire  freedom,  that  if  I  had  been 
in  that  house,  I  would  have  thought  myself  per- 
fectly justified  in  doing  what  is  frequently  done 
in  the  Southern  States,  in  shooting  down  anyone 
of  these  lawless  miscreants — and  yet  it  is  charged 
as  a  fault  upon  the  people  of  Lancaster  county 
that  these  men  are  not  prosecuted.  How  many 
peaceable  citizens  dare  not  prosecute  ?  Gentle- 
men of  the  Jury,  nearly  all  of  you  live  in  the 
country — you  wish  to  prosecute  a  desperate  vil- 
lain, and  at  midnight  your  barn  is  burned  down ; 
is  not  that  enough  to  deter  a  farmer  ?  Is  he  not 
only  to  have  a  band  of  reckless  villains  in  his 
neighborhood,  but  also  to  be  taunted  that  he 
does  not  apply  to  the'  law,  when  he  knows  it 
would  be  the  signal  to  these  convicts  from  the 
Penitentiary  to  put  the  torch  to  his  stacks  or  to 
his  barn. 

Why  were  not  the  actors  in  this  criminal  out- 
rage brought  here  by  the  United  States,  and 
placed  upon  the  stand  to  give  some  color  to  the 
unsupported  assertions  on  the  part  of  the  govern- 
ment, that  the  man  thus  kidnapped  at  Chamber- 
lain's, was  a  slave  ?  Simply  because  they  would 
have  shown  you,  that  these  men  were  not  the 
masters — no,  nor  the  attorneys  of  the  masters — 
that  they  had  no  warrant  of  any  kind  to  arrest 
him,  and  that  without  law  and  against  the  law, 
they  had  carried  off  a  man  whom  the  laws  of 
Pennsylvania  presumes  to  be  free  until  he  is 
proved  otherwise,  treated  him  with  crying  inhu- 
manity, and  dragged  him  across  the  line  into  a 
slave  State,  without  allowing  a  single  individiial 
the  opportunity  to  investigate  the  case,  and  to 
restore  him  to  that  liberty  to  which  he  was 
justly  entitled. 

These,  and  such  as  these,  are  the  men  who 
take  away  from  their  Honors  and  the  Commis- 
sioner all  power  of  examining  into  the  facts  of 
these  disgraceful  violations  of  a  public  Act  of 
Congress,  boldly  saying  we  will  violate  the  Fu- 
gitive Slave  Law,  whenever  and  wherever  we 
please,  and  if  you  don't  turn  negro-catcher  and 
assist  us,  you  are  guilty  of  treason ;  we  will  in- 
dict you,  and  will  come  here  with  the  whole 
force  of  the  State  of  Maryland,  and  try  to  con- 
vict you  of  this  most  heinous  offence  against  the 
United  States. 


218 


TREASON  CASES. 


Now,  gentlemen  of  the  jury,  this  is  not  the 
mode  in  which  either  the  laws  of  the  land  are  to 
be  executed,  or  a  case  of  this  solemn  interest  is 
to  be  tried.  I  have  had  in  the  course  of  my 
professional  life,  humble  as  I  am,  occasion  to  fill 
two  posts,  calling  upon  me  to  exercise  an  official 
discretion  in  criminal  cases,  once  on  the  part  of 
the  United  States,  and  once  on  the  part  of  the 
Commonwealth  of  Pennsylvania,  and  I  have  never 
thought  it  my  duty  to  press  for  a  conviction  un- 
less I  sincerely  believed  the  individual  guilty. 
I  have  never  thought  it  necessary  or  proper  on 
the  part  of  the  prosecution,  to  spread  before  a 
jury  every  fact  that  made  against  a  prisoner, 
and  not  to  give  him  the  full  effect  of  those  which 
made  for  him.  I  distinguish  entirely  between 
the  duty  of  a  prosecuting  officer  and  that  of  the 
counsel  in  civil  cases ;  the  one  acts  on  the  part 
of  the  government,  and  the  other  on  the  part  of 
his  private  client. 

What,  on  the  part  of  the  United  States — a 
great  country — spreading  from  the  Atlantic  to 
the  Pacific — from  Mexico  to  Canada — and  in- 
cluding the  most  valuable  portion  of  this  Western 
Continent — the  only  really  free  country  in  ex- 
istence— what  is  the  object  of  a  public  prosecu- 
tion? 

Not  vengeance,  not  blood,  not  persecution, 
but  simply  and  strictly  justice !  The  United 
States  have  no  right  to  ask  for  more  than  justice ; 
they  have  not  the  right  for  some  fancied  viola- 
tion of  the  Constitution  to  hang  a  man,  to  sacri- 
fice an  innocent  individual  on  the  altar  of  the 
Union — for  that  I  understand  is  the  real  argu- 
ment on  the  part  of  the  prosecution.  An  argu- 
ment, which  begins  not  here,  nor  in  regard  to 
this  transaction,  but  hundreds  of  miles  away,  for 
the  purpose  of  imbuing  this  court  and  jury  with 
sentiments  and  feelings  wholly  foreign  to  this 
case,  and  then  to  ask  them  in  accordance  with 
these  sentiments  and  feelings  to  convict  this 
innocent  man  of  the  highest  crime  known  to 
the  law. 

I  had  intended,  as  I  always  do,  and  as  I  hope 
to  do  upon  the  present  occasion,  to  commence 
according  to  the  best  of  my  ability  to  discuss 
first,  the  question  of  law;  second,  the  application 
of  the  law  to  the  evidence ;  and  then  in  conse- 
quence of  the  course  pursued  on  the  part  of  the 
United  States,  I  did  intend  to  say  something 
with  regard  to  our  brethren  of  the  South. 

We  are  told  he  is  kind  in  his  feelings  towards 
the  slave — that  the  laws  of  the  Southern  States 
are  kind  to  the  free  negroes — and  that  under  all 
the  circumstances  the  slave  is  in  a  state,  which, 
as  described  in  one  branch  of  the  national  legis- 
lature, is  infinitely  happier  than  that  of  the  free 
farmer  of  Pennsylvania. 

I  have  never  considered  slavery  a  blessing, 
and  I  trust  I  never  shall.  I  know  that  in  some 
States,  recently,  it  has  been  publicly  voted  to  be 
an  element  of  wealth  and  of  social  and  political 
power;  but  that  i3  a  view  of  the  subject  with 
which  I  can  never  concur.  Yet  at  this  moment, 
and  at  all  times,  I  am  ready  to  render  to  our 
Southern  brethren  any  justice,  and  to  extend  to 
them  the  right  hand  of  fellowship. 

But  the  question  here  is — not — what  is  neces- 


sary to  preserve  the  Union— for  about  that  I  have 
no  more  doubt  than  if  not  a  word  had  ever  been 
said  against  it.  I  have  lived  long  enough  to  know 
that  it  does  not  depend  upon  a  few  politicians, 
nor^  upon  a  few  slaveholders,  nor  upon  a  few 
capitalists.  It  depends  only  upon  the  true  sove- 
reigns in  this  country— the  people  ;  as  long  as 
they  are  sound,  I  care  not  what  the  politicians 
say,  nor  how  they  fret  away  a  few  hours  in 
making  inflammatory  speeches  to  re-elect  them 
to  Congress,  and  give  them  their  eight  dollars  a 
day. 

Notwithstanding  all  these  speeches  and  threats 
of  secession  and  dissolution,  no  one  ever  heard 
of  a  member  leaving  his  seat,  giving  up  his 
per  diem  and  mileage,  and  returning  in  patriotic 
dignity  to  his  constituents.  On  the  contrary, 
the  greater  the  apparent  excitement,  the  more 
threats  uttered  of  an  immediate  dissolution  on 
some  Saturday  which  never  arrives,  the  longer 
is  the  session  of  Congress,  and  the  more  public 
money  is  despairingly  received  by  the  bawling 
advocates  of  theoretical  disunion. 

Threaten  disunion  because  we  will  not  enforce 
the  Fugitive  Slave  Law!  We  will  enforce  it; 
but  we  will  not  permit  any  Southern  master  to 
come  into  Pennsylvania,  and  in  violation  of  law, 
and  of  the  rights  of  one  of  our  citizens,  to  tear 
away  his  slave,  and  contrary  to  the  express 
provisions  of  the  Fugitive  Slave  Law,  to  carry 
him  into  slavery.  Do  you  know  what  are  the  laws 
of  other  States  ? 

In  Virginia  no  such  thing  can  be  done.  You 
cannot  search  a  man's  house  therefor  a  harbored 
runaway  slave  without  a  proper  warrant,  issued 
on  complaint  on  oath  by  a  justice  to  the  sheriff 
or  other  officer,  commanding  him,  if  issued  by 
one  justice,  to  search  in  the  day  time,  and  if 
issued  by  two  justices,  to  search  either  in  the 
day  or  night  the  place  designated.  That  is  the 
law  of  Virginia,  placing  fugitive  slaves  on  the 
same  footing  as  other  property,  and  giving  no 
larger  rights  to  the  master. 

Are  we  not  to  have  the  benefits  of  the  Consti- 
tution extended  to  us  in  Pennsylvania,  although 
we  did  not  at  first  approve  of  this  law ;  or  are 
they  to  be  reserved  entirely  for  the  people  of  the 
South  ?  And  are  they  (because  it  suits  their 
pleasure)  to  take  away  individuals  from  Pennsyl- 
vania in  the  teeth  of  an  Act  of  Congress  ?  How 
do  we  know  where  this  poor  black  man  was 
carried  to  ?  How  do  we  know  that  he  was  a 
slave  ?  I  understand  the  learned  gentleman  to 
say  he  was  a  slave  because  he  came  from  Mary- 
land. There  are  74,077  free  negroes  in  Mary- 
land. When  they  leave  the  State  of  Maryland, 
they  cannot  return,  and  when  they  reach  Penn- 
sylvania they  are  transmuted  into  slaves  because 
they  come  from  Maryland.  Is  that  the  doctrine 
contended  for?  They  have  90,368  slaves  and 
74,077  free  blacks.  They  have  fewer  slaves  now 
than  they  had  at  the  adoption  of  the  Federal 
Constitution,  and  this  reduction  is  gradually 
going  on,  and  yet  the  argument  is,  if  a  free 
negro  comes  from  Maryland  into  Pennsylvania, 
he  is  a  slave.  What  is  to  become  of  these 
74,077  free  negroes  ?  What  is  to  become  of  the 
presumption  in  Pennsylvania,  that  every  man  is 


UNITED  STATES .  V.  HAXWAY. 


219 


free  ?  In  Maryland,  every  one  who  lias  the 
fifteenth  part  of  a  black  shade  in  his  blood,  how- 
ever white  his  skin  may  be,  is  presumed  to  be  a 
slave,  because  such  is  the  law  of  that  State. 
We  require  free  papers  in  Pennsylvania!  No,  we 
require  no  such  thing,  because  we  have  not  the 
same  state  of  society  which'  exists  in  the  South. 
A  state  of  society  of  which  you  know  nothing, 
but  of  which  these  laws  tell  their  own  story. 

•We  in  Pennsylvania  believe  every  colored  man 
to  be  free  until  he  is  proved"to  be  a  slave.  It  is 
not  our  business  to  inquire  his  position  when  he 
comes  from  Maryland — the  probability  is,  he  is 
a  free  man.  If  a  slave,  his  master  will  come  after 
him;  and  every  man  for  whom  the  master  has 
not  come,  we  presume  to  be  free. 

But  I  understand  the  State  of  Maryland  has  no 
laws  adverse  to  freedom.  Can  a  free  negro 
leave  that  State  and  come  into  Pennsylvania,  and 
go  back  again  without  being  put  in  jail  ?  Yvhen 
a  poor  fellow,  a  free  negro,  goes  out  of  the  State, 
and  they  carry  him  back  again,  they  make  a 
slave  out  of  him,  because  the  laws  of  Maryland 
say  a  colored  man  is  presumed  to  be  a  slave 
unless  he  can  prove  himself  to  be  free. 

I  have  the  materials  by  me  to  show  that  i if  a 
free  negro  goes  into  Maryland  he  is  put  in  jail, 
and  fined  $25,  and  if  he  cannot  pay  that  sum  and 
the  jail  fees,  they  sell  him — this  free  man — into 
perpetual  slavery. 

Let  us  consider  then,  that  we  have  a  duty  toper- 
form  herein  Pennsylvania.  We  have  a  free  colored 
population  of  53,201,  and  we  are  as  much  bound 
to  protect  them,  humble  and  powerless  as  they 
are,  as  any  of  our  other  citizens.  We  are  the 
more  bound  to  shield  this  defenceless  class  from 
injustice  and  oppression,  because  the  executive, 
legislative,  and  judicial  departments  of  the  j 
government  are  ours — we  make,  expound,  and 
execute  the  laws — the  judges,  the  juries,  and  the 
courts  are  ours,  and  we  are  responsible  to  God 
and  man  for  the  faithful  administration  of  these 
great  trusts. 

Has  Pennsylvania,  then,  no  right  to  preserve 
unimpaired  the  liberty  of  her  free  colored  citi- 
zens  ?  My  learned  friend  seems  to  think  she 
has  not,  but  that  on  the  contrary,  when  a  person 
from  Maryland  comes  and  lays  his  hands  upon 
any  black  man  he  pleases,  no  inquiry  is  to  be 
permitted,  and  the  alleged  master,  by  virtue  of 
the  clause  in  the  Constitution,  has  only  to  take 
him  at  once  into  Maryland,  and  then  he  becomes 
a  slave  forever. 

This  doctrine  will  not  suit  the  meridian  of 
Pennsylvania,  and  it  can  only  be  supported  upon 
the  ground  that  the  Fugitive  Slave  Law  is 
unconstitutional,  and  that  all  its  provisions  are 
an  entire  nullity. 

But  we  have  a  step  further  to  go  in  the  libe- 
rality of  Maryland  to  the  free  colored  citizens  of 
other  States.  You  may,  as  I  have  already  said, 
pay  the  fine  and  jail  fees  the  first  time,  and 
if  the  poor  free  negro  is  seduced  a  second  time 
across  the  line  by  the  acts  of  kidnappers,  the 
fine  is  $500,  and  if  you  cannot  raise  that  sum, 
he  is  sold  into  slavery,  carried  off  to  a  Southern 
market,  and  that  is  the  last  you  hear  of  him. 
This  is  not  fancy,  but  pure,  solid  fact,  and  took  I 


place  under  a  law  which  some  of  the  best  lawyers 
even  in  Maryland  think  to  be  unconstitutional, 
and  which  all  men  must  regard  as  contrary  to 
the  first  principles  of  common  humanity. 

Now,  have  we  nothing  to  complain  of  in  re- 
gard to  our  sister  State'  of  Maryland  ?  Before 
my  learned  friend  was  its  Attorney-General, 
requisitions  have  been  made  for  kidnappers 
who  had  stolen  free  people  from  Pennsylvania, 
but  they  have  been  uniformly  refused.  The 
instances  are  well  known,  and  one  of  the  indi- 
viduals is  a  professional  kidnapper,  who  deals  in 
human  flesh,  and  who  dare  not  come  into  Penn- 
sylvania, where  his  crimes  would  be  punished 
with  the  utmost  severity  of  the  law. 

The  instance  I  have  mentioned  under  the 
Maryland  laws,  was  that  of  a  poor  half-deranged, 
half-witted  free  negro,  who  was  seduced  into 
that  State  under  the  guidance  of  this  man-stealer, 
was  bought  by  him,  sold  by  him,  and  transported 
to  the  South,  although  a  free  man  by  the  laws 
both  of  Pennsylvania  and  Maryland. 

By  the  Revised  Code  of  Virginia  of  1849,  a 
statutory  reward  is  offered  for  runaway  slaves 
by  which  the  person  arresting  and  delivering  to 
the  owner  or  his  agent  or  a  jailer,  a  runaway 
slave,  if  taken  in  any  slaveholding  State,  not 
more  than  fifty  miles  from  the  place  of  residence 
of  the  master,  is  entitled  to  $20,  and  if  taken  in 
any  non-slaveholding  State,  and.  the  same  dis- 
tance, to  $100,  with  a  mileage  of  ten  cents  a 
mile,  so  that  the  temptation  is  held  out  to  go 
into  a  free  State  and  carry  off  a  negro  without 
warrant,  authority  or  hearing ;  and  if  a  mistake- 
in  identity  should  be  made,  it  can  be  corrected  by 
the  kidnapper  selling  him  for  a  Southern  market. 

There  is  still  another  question.  The  original 
provision  of  the  Constitution  was  made  for  all 
the  States,  and  it  is  not  merely  for  a  slavehold- 
ing State  upon  a  non-slaveholding  State.  Now 
I  should  like  to  know  if  the  slave  States  strictly 
enforce  the  provisions  of  the  Fugitive  Slave  Law 
of  1850  among  themselves. 

Have  they  no  Acts  of  Assembly  or  usages 
contravening  that  law  ?  If  they  have,  they  are 
violations  of  the  Constitution  and  of  the  Fugitive 
Slave  Law,  and  are  of  course  unconstitutional 
and  void.  The  Fugitive  Slave  Law  was  made  to 
carry  into  execution  this  clause  of  the  Constitu- 
tion ;  and  I  understand  from  my  learned  friend, 
that  at  the  time  of  the  adoption  of  that  instru- 
ment, a  large  proportion  of  the  States  were  slave 
States.  Unless,  therefore,  the  slave  States  strictly 
and  rigidly  pursue  the  enactments  of  the  Fugitive 
SlaveLaw  among  themselves,  they  have  no  right 
to  ask  their  Northern  brethren  to  obey  a  law 
which  they  every  daybreak  in  their  own  persons. 

If  I  am  a  Southern  master,  acting  under  the 
constitutional  provision  and  the  laws  made  under 
it,  and  I  go  into  a  free  State,  I  should  in  exercis- 
ing my  rights  obey  that  Constitution  and  these 
laws  ;  the  same  rule  holds  good  if  I  go  into  a 
slave  State,  for  the  Constitution  recognizes  no 
difference  in  this  particular,  as  to  the  State 
within  whose  jurisdiction  the  claim  is  made, 
and  I  cannot  legally  seize  the  man,  put  him  into 
a  wagon,  and  carry  him  off  without  first  taking 
him  before  a  judge  or  a  commissioner  of  the 


220 


TREASON  CASES. 


United  States,  and  complying  with,  all  the  re- 
quisitions of  the  Fugitive  Slave  Law. 

Can  any  one  who  looks  through  the  South, 
and  at  their  laws,  say  that  there  are  not  Acts  of 
Assembly  in  all  of  them  contravening  the  Fugi- 
tive Slave  Law,  and  which  should  be  immedi- 
ately repealed  as  unconstitutional. 


What  is  good  for  one  is  good  for  the  other,  and 
if  it  is  a  right  for  the  master  to  come  into  the 
Northern  States  and  ask  these  laws  to  be  ex- 
ecuted, it  is  certainly  proper  when  he  goes  into 
a  Southern  State  to  claim  a  similar  right,  that 
the  same  laws  should  be  as  strictly  obeyed  in 
the  last  instance  as  in  the  first. 


The  Reporter  regrets  his  inability  to  give  the  conclusion  of  Mr.  Read's 
speech,  which  occupied  nearly  three  days  in  its  delivery,  and  was  marked 
throughout  by  eloquence  and  profound  learning,  being  a  thorough  and  com- 
plete dissertation  on  the  law  of  Treason,  and  which  riveted  the  attention,  not 
only  of  the  Court  and  Jury,  but  of  a  crowded  auditory. 

Mr.  Stevens,  for  the  defence,  declined  speaking  in  the  cause,  to  the  disap- 
pointment of  many  who  desired  to  hear  him,  when 


UNITED  STATES  V.  KANWAY. 


221 


Mb.  Cooper  said : 

May  it  please  your  Honors :  Gentlemen  of  the 
Jury — 

Since  the  foundation  of  the  government  there 
has  not  been  submitted  to  a  jury  for  its  decision 
a  question  of  greater  importance,  or  of  more 
vital  and  general  concern,  than  that  involved  in 
the  issue  which  you  have  been  selected  and 
sworn  to  try.  Not  only  is  the  life  of  a  human 
being  at  state  upon  your  verdict,  but  conse- 
quences are  likely  to  flow  from  it,  deeply  affect- 
ing the  peace,  harmony  and  welfare  of  the  Union. 
At  this  moment,  the  people  of  the  opposite  sec- 
tions of  the  country  are  painfully  alive  to  the  im- 
portance of  this  issue,  inasmuch  as  it  is  supposed 
to  involve  the  rights  of  the  one  and  the  obliga- 
tions of  the  other,  under  the  law,  which  the  in- 
dictment charges  the  prisoner  with  traitorously 
obstinicting  and  opposing.  If  there  were  nothing 
more  than  the  life  of  a  fellow-creature  at  stake, 
on  the  event  of  the  inquiry  you  have  been 
charged  to  make,  your  duty  would  still  be  a 
solemn  one :  but  your  resposibilities  become 
painfully  enhanced,  when  the  consequences  to 
the  country  as  well  as  to  the  prisoner  come  to  be 
regarded. 

The  counsel  for  the  prisoner  tell  you  that  the 
Union  is  in  no  danger  ;  that  its  foundations  are 
too  deeply  and  securely  laid  to  be  shaken  or  dis- 
turbed by  any  thing  that  may  be  done  here. 
That  any  single  act,  would  be  sufficient  to  break 
up  the  Union,  I  do  not  believe.  I  admit  that  it 
is  strong  ;  strong  in  the  affections  of  the  people; 
strong  in  the  associations  and  memories  which 
cluster  about  its  origin,  and  above  all,  in  its  own 
intrinsic  excellence.  A  thousand  ties,  old  and  new, 
bind  the  States  together.  Their  former  union  to 
resist  oppression  and  tyranny  ;'  their  participa- 
tion in  common  dangers  ;  the  blood  of  their  sons 
poured  out  on  the  same  battle  fields,  and  their 
bones  mouldering  together  in  the  same  earth ; 
their  ultimate,  mutual  triumph  ;  their  subse- 
quent progress — these,  and  an  hundred  other 
considerations,  constitute  ties  to  bind  them  to- 
gether in  the  bonds  of  fellowship.  Bonds  like 
these  cannot  be  easily  sundered ;  but  they  may 
be  weakened,  and  one  by  one  they  may  be  broken 
in  twain.  It  is  true,  gentlemen,  that  the  edifice 
of  the  Union  is  a  proud  and  a  strongf  one,  its 
foundations  deeply  and  firmly  laid.  But  proud 
as  it  is,  strong  as  it  is,  and  glorious  as  it  stands 
erect  amongst  the  nations,  it  must  be  remem- 
bered that  it  is  the  work  of  human  hands,  and 
that  as  human  hands  constructed  it,  they  may 
also  pull  it  down.  It  may  be  true  ;  it  is  doubt- 
less true,  that  there  are  none  strong  enough  to 
take  hold  of  its  pillars,  and  Samson-like  overturn 
it  at  once.  But  the  waves  of  disaffection,  dash- 
ing constantly  against  its  base,  may  undermine  it ; 
its  columns,  though  they  be  of  marble,  may  be 
broken  and  defaced ;  and  removing  stone  by 
stone,  the  whole  of  the  glorious  structure  may 
be  leveled  with  the  earth. 

This,  gentlemen  of  the  jury,  is  no  mere  un- 
meaning metaphorical  declamation ;  it  is  a  just 
and  simple  illustration  of  the  manner  by  which  i 
the  ties  binding  the  Union  together  may  be  sun-  j 
dered.    If  it  is  to  be  perpetuated,  the  parties  to  j 


it  must  perform  their  mutual  obligations  with 
alacrity.  There  must  be  no  refusal,  no  holding 
back,  no  hesitancy  to  comply  with  the  obliga- 
tions which  the  constitution  imposes.  Its  fram- 
ers  did  not  intend  that  the  duties  which  it  en- 
joined, should  be  stintedly  and  hesitatingly 
performed;  but  that  acting  in  good  faith,  the 
parties  to  it  should  cordially  fulfill  all  its  require- 
ments. By  doing  so,  peace,  harmony  and  the 
ancient  fellowship  which  existed  between  the 
North  and  the  South  may  be  restored  and  pre- 
served. By  pursuing  a  contrary  course;  by  a 
tardy  acknowledgment,  and  a  hesitating  per- 
formance of  their  duty,  one  to  the  other,  by  the 
States  and  the  people  of  the  States,  mutual  con- 
fidence will  be  destroyed,  crimination  and  re- 
crimination will  produce  discord  and  alienation, 
and  finally  enmity ;  until  at  length  the  Union 
will  come  to  be  regarded  as  a  curse  rather  than 
a  blessing. 

I  will  not  stop,  gentlemen,  to  depict  the  state 
of  things  that  would  follow  its  dissolution.  Ag- 
gressions, wars,  conquests;  kindred  blood  shed 
by  kindred  hands  ;  and  finally,  liberty  prostrate 
at  the  feet  of  triumphant  despotism,  will  be  the 
last  act  in  the  drama  of  our  follies  and  our 
crimes.  And  when  once  the  Union  has  been 
broken  up  and  its  fragments  scattered,  who  will 
gather  them  together  and  reconstruct  them  ? 

But,  gentlemen,  without  further  preface,  I  must 
proceed  to  the  discussion  of  the  question,  imme- 
diately occupying  your  attention ;  and  my  object 
will  be  to  aid  you,  as  far  as  I  can,  by  a  fair  and 
candid  examination  of  the  law  and  the  facts  in- 
volved in  the  case.  In  this  I  will  not  pursue  the 
example  which  has  been  set  by  the  counsel  for 
the  prisoner,  or  by  some  of  them  at  least.  There 
has  been  a  studied  and  systematic  attempt  from 
the  opening  of  the  cause  to  the  present  moment, 
to  excite  your  prejudices  against  the  counsel  for 
the  prosecution,  especially  against  those  who  are 
denominated,  with  what  propriety  I  will  not  say, 
the  representatives  of  the  State  of  Maryland. 
One  of  the  counsel  for  the  prisoner,  the  gentle- 
man who  opened  the  defence,  whilst  professing  a 
candor  which  should  have  scorned  to  stoop,  either 
to  deception  or  equivocation,  and  a  confidence  in 
his  case  which  requires  at  your  hands,  not  only 
a  verdict  of  acquittal,  but  likewise  a  certificate 
of  commendation  ;  has  nevertheless  endeavored 
to  excite  your  prejudice  against  the  counsel  for 
the  prosecution  by  informing  you,  that  one  of 
them  was  the  representative  of  the  State  of 
Maryland,  thirsting  for  the  blood  of  the  prisoner, 
and  distrusting  the  justice  of  the  government ; 
whilst  the  other  was  a  Senator,  who  had  left  his 
seat  in  the  body  of  which  he  was  a  member,  to 
come  here  and  ask  for  the  blood  of  an  innocent- 
constituent.  Candor,  gentlemen,  never  conde- 
scends to  unjust  and  vindictive  aspersion ;  and 
true  confidence  never  resorts  to  the  inculcation 
of  a  base  or  false  prejudice,  to  accomplish  an 
honest  or  honorable  object. 

Can  it  be  possible,  gentlemen  of  the  jury,  that 
the  counsel  who  indulged  in  such  a  strain  of  un- 
sustained  and  unwarranted  aspersion,  could  have 
seen  no  other  motive  on  the  part  of  Maryland  or 
her  counsel,  than  a  vindictive  thirst  for  blood  ? 


222 


TREASON  CASES. 


If  he  could  not,  he  deserves  pity  rather  than  re- 
proach ;  but  if  believing  otherwise,  for  the  pur- 
pose of  infusing  into  your  minds  an  improper 
prejudice,  tending  to  disqualify  you  from  judging 
calmly  and  dispassionately  between  the  govern- 
ment and  the  prisoner.  I  leave  it  to  you  to 
characterise  his  conduct,  and  to  decide  whether 
such  professions  of  candor  are  not  like  that  kind 
of  faith  which  is  followed  by  no  good  works. 

A  generous  and  candid  mind  would  never  have 
concluded  of  professional  brethren,  without  some 
show  of  proof,  that  they  were  the  vindictive 
seekers  of  innocent  blood,  or  the  unscrupulous 
instruments  of  a  bloodthirsty  State  malevolence. 
This  charge  is  a  calumny  in  all  its  length  and 
breadth,  and  extends  not  only  to  the  counsel,  but 
likewise  to  the  patriotic  Governor  of  Maryland, 
at  whose  instance  they  are  here.  In  sending . 
hither  the  Attorney  General  of  the  State,  (Mr. 
Brent)  a  gentleman  as  much  distinguished  for  the 
liberality  of  his  character,  his  high  moral  and 
social  worth,  as  for  his  ability  and  learning  as  a 
lawyer  ;  and  in  associating  <with  him  the  humble 
individual  who  is  now  addressing  you,  Governor 
Lowe  was  moved  by  no  distrust  of  the  govern- 
ment or  its  officers  ;  by  no  spirit  of  vindictive- 
ness,  or  thirst  for  blood.  Considerations  of  en- 
lightened policy  and  enlarged  humanity  and 
patriotism  were  his  inducements.  Knowing  the 
excited  condition  of  public  feeling  in  his  own 
State,  occasioned  by  the  murder  of  one  of  its 
most  respectable  citizens,  and  that  the  people  of 
the  South,  generally,  were  painfully  alive  on  the 
subject,  he  was  anxious  to  have  it  in  his  power 
to  satisfy  and  quiet  any  excitement  which  might 
be  produced  by  a  verdict  adverse  to  their  expec- 
tations, by  the  testimony  of  representatives  of 
his  own  State,  who  had  participated  in  the  con- 
duct of  the  cause.  For  himself,  acquainted  with 
the  Court,  the  integrity  and  learning  of  the 
judges,  he  needed  no  assurance  that  the  laws 
would  be  vindicated,  as  far  as  it  was  in  their 
power  to  vindicate  them.  But  such  an  assurance 
on  his  part  would  be  of  little  avail,  if  a  contrary 
conviction  existed  in  the  minds  of  the  people, 
which  he  had  not  the  power  to  remove.  To  re- 
move such  conviction,  he  was  aware  that  informa- 
tion conveyed  to  him  through  the  ordinary  chan- 
nel of  the  public  press,  would  not  be  sufficient. 
But  if  he  could  refer  to  the  testimony  of  counsel, 
who  had  participated  in  the  trial,  as  the  repre- 
sentatives of  his  own  State,  for  the  fairness  with 
which  every  thing  had  been  conducted;  such 
testimony  would  satisfy  the  public  mind,  allay 
and  quiet  the  aroused  and  excited  feelings  of  the 
people  of  Maryland  and  other  Southern  states. 
It  is  for  such  reasons  as  these  that  Governor 
Lowe  believed  it  necessary  that  Maryland  should 
be  present  at  this  trial  by  her  counsel ;  and  in 
view  of  these  reasons,  permit  me  to  ask  you, 
gentlemen  of  the  jury,  whether  his  conduct  has 
not  been  wise  and  judicious,  and  marked  by  a 
patriotic  forecast  that  entitles  him  to  the  respect 
and  confidence  of  the  advocates  of  peace  and 
harmony,  at  both  ends  of  the  Union  ?  It  is  an 
easy  thing  to  float  along  with  the  current  of 
events ;  and  in  the  present  state  of  public  feeling 
it  would  have  been  much  easier  for  Governor 


Lowe  to  drop  into  the  stream  and  glide  along 
with  it,  than  to  prepare,  in  case  of  necessity,  to 
check  it  or  change  its  course.  But  he  did  not 
look  to  the  subject  in  this  light.  He  was  hot 
moved  by  consideration  of  personal  convenience 
or  advantage ;  these  had  no  influence  upon  his 
conduct,  which  was  regulated  solely  by  a  desire  to 
promote  harmony  and  concord  between  the  con- 
flicting sections  of  the  country.  But  Governor 
Lowe  needs  no  vindication  at  my  hands.  The 
fact,  that  at  a  period  of  life  when  few  men  have 
yet  entered  on  their  political  career,  he  has  al- 
ready reached  the  highest  station  in  the  gift  of 
his  fellow  citizens,  furnishes  the  best  evidence  of 
his  exalted  worth.  Charges  of  vindictiveness, 
whether  directly  or  indirectly  preferred,  will 
hardly  ever  disturb  the  unanimity  of  the  public 
voice,  which  accords  to  him  the  character  of  a 
wise  and  patriotic  statesman,  devoted  to  the 
preservation  of  the  constitutional  rights  of  his 
own  State,  and  the  integrity,  peace  and  harmony 
of  the  Union.  Nor  with  you,  gentlemen,  nor 
with  the  Court,  will  the  industrious  effort  of  the 
defence  to  excite  prejudice  against  the  counsel, 
who  represent  Maryland,  have  any  effect.  We 
are  here,  occupying  the  place  we  do  in  the  trial, 
at  the  instance  of  the  government  of  the  United 
States,  and  with  the  full  approbation  of  the 
learned  District  Attorney,  (Mr.  Ashmead)  who 
sits  by  my  side.  And  whilst  we  continue  to  act 
with  fidelity  to  the  Court,  with  candor  to  you, 
and  fairness  to  the  prisoner,  what  is  there  to 
complain  of  ?  From  our  presence,  who  can  suffer 
injury?  Ourselves,  were  our  motives  for  being 
here  such  as  are  insinuated ;  but  nobody  else. 

But,  gentlemen  of  the  jury,  without  further 
preface,  I  will  address  myself  to  the  argument  of 
the  cause,  and  endeavor  to  occupy  as  little  of 
your  time  as  may  be  consistent  with  a  clear  pre- 
sentation to  you  of  the  law  and  the  facts  as  they 
exist  in  the  case.  In  discussing  the  law,  I  shall 
not  go  back  with  the  learned  gentleman,  (Mr. 
Read)  who  preceded  me,  to  the  dark  and  trou- 
bled periods  of  English  history,  when  the  courts 
were  subservient  to.  the  crown,  and  the  laws  ad- 
ministered without  regard  to  the  rights  of  the 
subject.  Such  precedents  as  I  may  think  proper 
to  use,  drawn  from  British  jurisprudence,  will 
be  from  an  era  in  its  history  when  the  doctrines 
of  Magna  Charta,  began  to  find  a  practical  and 
general  application  at  the  hands  of  the  English 
judges  ;  when  the  ancient  rigor  of  the  law  had 
been  moderated  and  softened  by  the  ameliorating 
genius  of  Hale,  Foster  and  Mansfield.  I  shall 
hardly,  even,  think  it  worth  while  to  defend  the 
character  of  Lord  Coke  from  the  reproach  cast 
upon  it  by  my  learned  friend.  It  matters  little 
to  us,  for  the  purposes  of  this  trial,  whether  his 
morals  were  good  or  bad — whether  his  dispositon 
was  cruel  or  humane.  In  vindication  of  history, 
it  will  be  enough  for  me  to  say,  that  whatever 
may  have  been  his  character  as  a  man,  as  a 
judge  he  shed  lustre  upon  the  jurisprudence  of 
the  country. 

In  his  denunciations  of  the  law  of  treason  as 
understood  and  administered  previous  to,  and 
during  the  arbitrary  domination  of  the  Tudors 
and  the  Stuarts,  I  can  unite  with  him  cordially. 


UNITED  STATES  V.  HANWAY. 


223 


Nor  do  I  differ  with  him  in  regard  to  many  of 
the  more  modern  cases  which  he  has  cited,  as 
having  been  decided  in  opposition  to  precedent, 
and  in  violation  of  the  law  of  treason  as  existing 
at  the  time  in  England.  Indeed,  in  most  that  he 
has  said  of  the  English  law,  and  of  the  construc- 
tion  put  upon  it  by  the  English  judges,  I  concur. 
But  while  I  do  concur,  I  shall  still  be  able,  I 
think,  to  show  you  from  cases  decided,  both  in 
this  country  and  in  England,  the  authority  of 
which  has  never  been  shaken,  or  even  doubted, 
that  to  attempt  to  prevent  by  force  the  execution 
of  an  Act  of  Congress,  is  high  treason  by  levying 
war,  and  that  without  regard  to  the  quantum  of 
force  or  numbers  employed. 

By  the  Constitution,  Article  3,  Section  8,  Ch. 
1,  treason  is  defined  to  consist,  "  in  levying  war 
against  the  United  States,  or  in  adhering  to 
their  enemies,  giving  them  aid  and  comfort." 
And,  in  order  to  convict  any  one  of  treason,  two 
witnesses  are  necessary  to  each  overt  act ;  and 
on  no  proof  less  than  that  of  two  witnesses,  how- 
ever conclusive  it  may  be,  can  any  one  be  con- 
victed, except  upon  voluntary  confession  in  open 
court.  "This  is  a  wise  and  humane  provision, 
adopted  first  in  England,  and  transferred  from 
the  British  statutes  into  the  Constitution  and 
laws  of  the  United  States.  In  violent  and  arbi- 
trary times,  when  the  will  of  the  sovereign  was 
the  law  of  the  courts,  convictions  on  the  testi- 
mony of  one  witness,  were  frequent,  even  when 
it  was  suspected  that  his  testimony  was  false,  or 
procured  by  the  minions  of  power,  to  remove 
some  obnoxious  person  from  the  path  of  the 
king.  If  the  common  people  had  been  the  prin- 
cipal objects  of  royal  jealousy  and  punishment, 
parliament  would  probably  have  been  slow  to 
interpose  an  obstacle  between  them  and  it ;  but 
as  the  great  barons  were  the  most  likely  to  be 
suspected  of  treasonable  enterprises,  advantage 
was  taken  by  them  of  the  reign  of  a  more  mag- 
nanimous sovereign,  for  the  enactment  of  a  law, 
the  better  to  protect  the  subject  against  the  in- 
fluence of  the  power  of  the  crown.  At  that  pe- 
riod there  were  many  species  of  treasons,  all  of 
them  punishable  with  death ;  and  to  charge  an 
obnoxious  person  with  the  commission  of  some 
one  of  them,  and  to  procure  a  witness  to  swear 
to  his  guilt,  were  easy  matters.  To  prevent  this, 
to  secure  the  life  of  the  individual  accused  against 
the  effects  of  perjury,  as  far  as  was  practicable, 
without  granting  immunity  to  crime,  a  statute 
was  enacted,  providing  that  no  one  should  there- 
after be  convicted  of  treason,  except  on  the  tes- 
timony of  two  witnesses.  The  object  of  this 
statute,  I  need  not  say,  was  to  prevent  a  single 
witness  from  swearing  away  the  life  of  a  person 
charged  with  treason — a  political  crime  easily 
imputed,  easily  proved,  and  punished  not  only 
with  death,  but  by  attainder  and  corruption  of 
blood. 

As  I  have  already  stated,  although  we  have 
in  this  country  but  two  kinds  of  treason,  one 
consisting  in  levying  war  against  the  United 
States,  and  the  other  in  adhering  to  their  ene- 
mies, giving  them  aid  and  comfort,  it  has,  never- 
theless, been  provided  by  the  Constitution,  that 
no  one  shall  be  convicted  except  on  the  testimony 


of  two  witnesses  to  each  overt  act  of  the  same 
treason.  And  here,  gentlemen  of  the  jury,  let 
me  call  your  attention  to  the  fact,  that  notwith- 
standing the  counsel  for  the  prisoner  have  com- 
plained loudly,  though  somewhat  indirectly,  of 
the  indictment  of  their  client  for  treason,  they 
have  complained  of  that  which  constitutes  his 
greatest  advantage.  Indicted  for  murder,  a 
single  witness  wonld  have  been  enough  to  con- 
vict him  ;  and  the  intention  with  which  he  was 
present  at  the  deed,  would  have  been  inferred 
from  *  his  presence  itself,  without  proof,  But 
being  indicted  for  treason,  two  witnesses  are 
necessary  to  his  conviction ;  and  from  his  pre- 
sence at  the  overt  act,  though  aiding  and  abet- 
ting in  its  commission,  treason  is  not  necessarily 
inferable.  By  this,  I  mean  to  say,  that  in  this 
case  it  would  be  easier  to  convict  the  prisoner  of 
murder  than  to  convict  him  of  treason,  inasmuch 
as  in  proving  the  corpus  delicti,  the  offence  would 
be  completely  made  out,  if  the  prosecution  were 
for  murder,  while  it  is  not  so,  being  for  treason. 
In  murder,  the  killing  would  constitute  the 
corpus  delicti ;  and  this  being  proved,  the  malice 
would  be  inferred.  In  treason,  the  overt  act  con- 
stitutes the  corpus  delicti;  but  in  cases  like  this, 
the  intention  is  not  inferable  from  mere  proof  of 
the  overt  act.  The  intention  must  be  proved 
aliunde,  that  is,  by  other  means.  There  are,  no 
doubt,  cases  in  which  the  intention  to  commit 
treason  would  be  inferred  from  the  overt  act 
itself;  as,  for  example,  if  a  large  body  of  men, 
owing  allegiance  to  the  country,  armed  and  ar- 
rayed in  a  warlike  manner,  were  to  attack,  openly, 
the  army,  or  a  portion  of  the  army  of  the  United 
States,  the  intention  to  commit  treason  would  be 
plainly  indicated,  and  would  be  inferred  from  the 
act,  without  other  proof.  But  in  a  case  like  the 
present,  where  the  overt  act  laid  in  the  indictment 
is  not  per  se,  treasonable ;  where  it  is  as  consis- 
tent with  a  limited  purpose  of  violating  the  law, 
in  a  particular  instance,  as  with  a  general  pur- 
pose of  obstructing  and  nullifying  it,  proof  of 
the  intention  with  which  the  overt  act  was  com- 
mitted, is  necessary.  Direct  evidence  of  the  in- 
tention, it  is  true,  is  not  requisite,  and,  indeed, 
is  hardly  ever  to  be  obtained.  But  in  the  cir- 
cumstances of  the  case,  in  the  acts  of  the  party 
charged,  his  associations,  declarations,  his  con- 
duct at  the  time,  the  influence  of  his  presence 
upon  the  active  agents  in  the  transaction,  his 
deportment  afterwards — in  some  such  facts  the 
key  to  his  intention  is  generally  found. 

You  will  see,  gentlemen  of  the  jury,  from  what 
I  have  said  on  this  subject,  how  little  ground 
there  is  for  the  complaints  of  Castner  Hanway's 
counsel,  that  he  was  indicted  for  high  treason. 
Had  he  been  indicted  for  murder,  his  conviction 
would  have  been  comparatively  easy.  In  that 
case  he  would  have  had  but  twenty  peremptory 
challenges,  instead  of  thirty-five ;  he  would  have 
been  entitled  to  no  list  of  witnesses  in  advance 
of  his  trial,  nor  to  the  more  important  privilege 
still,  of  excluding  all  testimony  discovered  after 
its  commencement.  His  punishment,  in  case  of 
conviction,  would  be  the  same  in  the  one  case  as  in 
the  other.  Why,  then,  is  it,  that  you  have  heard 
so  much  of  the  cruelty  and  injustice  of  indicting 


224 


TREASON  CASES. 


this  man  for  treason  ?  It  is  for  the  sam.€  purpose, 
and  no  other,  that  Maryland  ig  represented  as 
coming  here,  thirsting  for  blood  and  anxious  for 
a  victim.  But,  gentlemen  of  the  jury,  dropping 
all  that  is  extraneous,  let  us  look  for  the  truth 
in  the  facts  of  the  case  as  disclosed  by  the  testi- 
mony of  the  witnesses.  To  seek  the  truth  is 
alike  your  duty  and  mine ;  and  the  truth  we  are 
in  search  of  is,  whether  Castner  Hanway,  the 
prisoner  at  the  bar,  is  guilty  or  not  guilty  of  the 
crime  of  high  treason  ?  It  matters  not  what 
other  crimes  he  has  committed,  if  he  be  not 
guilty  of  treason  you  must  acquit  him.  To  this 
inquiry,  then,  let  us  address  ourselves  in  good 
faith  and  in  a  spirit  of  candor,  above  all  preju- 
dices, incompatible  with  our  high  duties  and  re- 
sponsibilities, as  well  as  above  every  artifice 
which  might  be  a  stumbling-block  in  the  way  of 
the  discovery  of  truth. 

The  most  natural  course,  and  that  which  I  had 
intended  to  adopt  in  the  discussion,  was  to  in- 
quire, in  the  first  place,  what  constitutes  treason 
in  levying  war,  as  at  present  understood  in  Eng- 
land and  the  United  States,  and  afterwards  to 
proceed  to  the  examination  of  the  facts,  applying 
to  them,  as  developed,  the  law  as  it  exists.  A 
suggestion  from  the  Court  has,  however,  induced 
me  to  change  the  order  which  I  had  designed  to 
pursue. 

The  treason  with  which  the  prisoner  is  charged 
in  the  indictment,  is  treason  by  levying  war; 
and  this  is  the  only  kind  of  treason  with  which 
we  shall  have  any  thing  to  do  in  the  course  of 
the  argument  which  I  propose  to  address  to  you. 
The  term  or  expression  "levying  war,"  is  not 
confined  to  war  formally  declared  or  waged ;  nor 
does  it  merely  import  the  employment  of  an  or- 
ganized force  directed  against  the  government, 
and  designed  to  overthrow  it.  Any  .insurrection 
or  rising  to  resist  or  prevent  by  force  the  exe- 
cution of  any  public  or  general  statute  of  the 
United  States ;  to  attempt  to  obtain,  by  intimi- 
dation or  violence,  the  repeal  of  a  law,  or  by 
force  to  prevent  its  operation,  is  treason  by 
44  levying  war,"  according  to  the  best  authorities 
here  and  in  England. 

The  treason  with  which  the  prisoner  is  charged 
consists  in  the  overt  act,  coupled  with  an  inten- 
tion to  obstruct  and  nullify  the  law,  and  not 
merely  with  an  intention  to  violate  it  in  a  par- 
ticular instance.  The  overt  act  must  be  proved 
by  two  witnesses ;  but  the  intention  may  be  de- 
duced from  the  circumstances  connected  with  the 
case — from  his  presence  and  manner  of  acting 
on  the  occasion,  and  from  his  conduct  at,  before, 
and  after  the  transaction. 

In  this  case,  the  overt  act  consists  in  the  vio- 
lence committed  at  Parker's  house,  in  the  resist- 
ance offered  to  the  execution  of  the  law,  the 
murder  of  Edward  Gorsuch,  and  the  wounding 
of  several  of  the  party,  lawfully  employed  to  aid 
in  the  capture  of  his  fugitive  slaves.  The  learned 
counsel,  (Mr.  Read,)  who  immediately  preceded 
me,  has  insisted,  with  great  earnestness  and  fre- 
quency, that  the  United  States  have  failed  to 
prove  the  overt  act  by  two  witnesses,  and  that 
the  prosecution  must  therefore  fail.  In  what 
does  he  suppose  the  overt  act  consists,  if  not  in 


the  acts  of  force  and  violence  as  contra-distin 
guished  from  the  intention  ?  By  the  force  of  the 
term,  overt  act,  that  which  is  manifest,  tangible, 
palpable,  is  signified ;  and  in  his  speech  in  de- 
fence of  Lord  George  Gordon,  indicted  for  an 
attempt  to  obtain  by  force  the  repeal  of  an  act 
of  Parliament,  Lord  Erskine  speaks  of  the  overt 
act  as  the  "  open  deed" — the  physical  violence 
committed  by  the  insurgents. 

In  his  charge  to  the  Grand  Jury,  in  the  case 
of  the  Northampton  Insurgents,  Judge  Iredell 
calls  the  overt  act  the  "actual  deed" — meaning 
the  acts  of  violence  and  outrage  committed  by 
the  insurgents  in  resisting  the  execution  of  the 
law.  Does  the  learned  gentleman,  (Mr.  Read,) 
when  he  insists  that  the  overt  act  has  not  been 
proved  by  two  witnesses,' mean  to  say  that  in 
treason  the  overt  act  does  not  consist  in  the  acts 
of  open,  palpable  violence  alone,  but  in  these 
connected  with  the  criminal  intention  ?  Does  he 
intend  to  insist,  that  the  overt  act  comprehends 
both  the  quo  animo  and  the  deeds  of  actual  vio- 
lence ?  If  so,  why  is  the  term,  overt  act,  used  in 
the  Constitution  and  laws  ?  "Why  did  they  not 
declare  that  treason,  and  not  merely  the  overt 
act  of  treason,  should  be  proved  by  the  testimony 
of  two  witnesses,  if  the  gentleman's  construction 
be  the  just  one  ?  The  reason  for  requiring  the 
overt  act  to  be  proved  by  two  witnesses,  is  per- 
fectly obvious  and  proper.  It  was  to  secure  the 
life,  of  the  citizen  against  the  perjury  of  a  single 
witness ;  and  in  requiring  two  witnesses  to  the 
overt  act,  no  necessary  impunity  was  granted  to 
the  crime  ;  for  the  overt  act  in  treason  is  gene- 
rally of  such  a  character  as  to  be  both  cogniza- 
ble and  provable  by  a  number  of  persons.  But 
to  have  required  two  witnesses  to  prove  the  in- 
tention, would  have  been  to  license  the  commis- 
sion of  treason ;  and  even  to  require  direct  proof 
of  the  intention  by  a  single  witness  would,  in  a 
great  measure,  defeat  the  ends  of  justice ;  and 
hence  it  is  that  the  intention  may  be  inferred 
from  the  acts  of  the  party,  either  before,  at,  or 
after  the  commission  of  the  overt  act. 

This  being  so,  how  stands  the  gentleman's  as- 
sertion that  the  overt  act  has  not  been  proved  by 
two  witnesses  ?  If  the  overt  act  consists  in  the 
violence  committed  at  Parker's  house,  on  the 
morning  of  the  11th  of  September — in  the  mur- 
der of  Gorsuch,  the  wounding  of  his  son  and 
nephew,  and  the  chasing  away  of  the  officer 
charged  with  the  execution  of  the  process,  it  has 
been  proved,  not  by  one  or  two  witnesses,  but  by 
eight  or  nine ;  and  by  the  witnesses  of  the  pri- 
soner as  well  as  of  the  prosecution.  Henry  H. 
Kline,  Dr.  Pierce,  Joshua  and  Dickenson  Gor- 
such, Nicholas  Hutchings,  Nathan  Nelson,  Miller 
Nott,  John  Nott,  and  Elijah  Lewis,  all  testify 
distinctly  to  the  acts,  of  violence  and  bloodshed 
committed  on  the  morning  of  that  unfortunate 
day. 

But,  gentlemen  of  the  jury,  I  shall  dwell  no 
longer  on  this  part  of  the  case.  The  overt  act 
has  been  fully,  amply,  distinctly  proved.  The 
next  question  is,  by  whom  was  it  committed  ? 
Approaching  the  neighborhood  of  Parker's  house, 
on  the  morning  of  the  11th  of  September,  about 
day-break,  a  negro  was  discovered,  whom  Ed- 


UNITED  STATES  V.  HANWAT. 


'225 


ward  Gorsuch  recognizing  as  one  of  Ms  slaves,  I 
immediately  pursued.  He  fled  towards  Parker's, 
followed  by  officer  Kline.  Gorsuch,  and  the  rest 
of  the' party,  numbering  seven  in  all.  The  negro 
having  entered  the  house,  it  was  immediately 
surrounded  :  and  on  a  demand  being  made  upon 
the  person  calling  himself  the  landlord,  for  the 
fugitives,  it  was  refused.  The  house  was  then 
entered  by  the  Marshal  (Kline)  and  Edward  Gor- 
such, the  owner  of  the  slaves,  and  the  warrants 
which  had  been  issued  by  Commissioner  Ingraham 
were  read.  The  occupants  of  the  house  still  re- 
fusing to  surrender  the  slaves,  the  Marshal  and 
Gorsuch  withdrew  from  it,  the  latter  commenc- 
ing a  parley  with  the  negroes  from  the  outside. 
About  this  time  a  gun  was  fired  from  the  window 
at  Mr.  Gorsuch,  the  contents  of  which  almost 
grazed  his  person.  Before  this,  missiles  had 
been  thrown  from  the  window,  one  of  which 
struck  Dr.  Pierce  above  the  right  eye,  producing 
a  severe  contusion.  Whilst  these  things  were 
occurring,  a  horn  was  blown  from  the  window  of  | 
Parker  spouse  by  the  negroes,  and  shortly  after- 
wards the  prisoner,  Castner  Hanway,  rode  up  to 
the  bars,  situated  a  small  distance  from  the 
mouth  of  the  short  lane,  in  the  direction  of  the 
house.  The  Marshal,  who,  during  the  occur- 
rences which  I  have  last  described,  had  made  a 
feint  to  send  Nicholas  Hutchings  to  the  next 
town  for  an  hundred  men,  on  seeing  Hanway  at 
the  bars,  approached  him,  showed  him  his  war- 
rants, and  required  his  aid  in  arresting  the  fugi- 
tives. Hanway  refused  to  assist,  but  remained 
at  the  bars  in  conversation  with  the  Marshal, 
during  which  time  several  parties  of  negroes, 
armed  with  guns,  scythes,  corn-cutters,  clubs, 
&c,  came  up  from  various  directions — some  along 
the  lane,  some  through  the  fields.  A  portion  of 
these  negroes  stopped  and  loaded  their  guns, 
close  by  where  Hanway  was  sitting  on  his  horse. 
About  'this  time  Elijah  Lewis  came  up :  and 
shortly  afterwards  the  Marshal  attempted  to 
withdraw  his  party  from  the  house.  At  this 
period  of  the  transaction,  the  number  of  negroes 
on  the  ground,  according  to  the  testimony  of  the 
witnesses,  amounted  to  one  hundred  or  one  hun- 
dred and  fifty,  most  of  whom  were  armed  with 
some  kind  of  weapons  :  and  it  was  about  this 
period  the  violence  commenced,  that  Edward 
Gorsuch  was  shot  down  and  inhumanly  beaten 

i  to  death,  and  that  Dickenson  and  Joshua  Gor- 
such and  Dr.  Pierce  were  wounded,  put  to  flight, 
and  pursued  by  the  infuriated  negro  mob.  In 
this  recital,  gentlemen,  made  for  the  purpose  of 
showing  by  whom  the  overt  act  was  committed, 
I  have  designedly  omitted  many  important  facts, 

j  to  which  shall  call  your  attention  hereafter. 
These  facts,  as  I  have  stated  them,  are  proved 
by  Henry  H.  Kline,  and  the  whole  of  the  party 
who  accompanied  him  to  the  scene  of  this  re-  j 
yoking  and  bloody  tragedy,  as  well  as  by  several 
of  the"  prisoner's  own  witnesses.  The  commis- 
sion of  the  overt  act  is  therefore  established  be- 
yond controversy  :  and  that  some  hundred  or  j 
hundred  and  fifty  persons,  principally  armed, 
participated  in  it,  is  proved  with  equal  certainty. 

[      The  next  question  is,  was  there  concert  or \ 

;    combination':  If  so,  for  what  purpose? 


That  the  assemblage  at  Parker's,  on  the  morn- 
ing of  the  11th  of  September,  as  well  as  the 
violence  which  was  afterwards  committed,  were 
the  result  of  previous  concert  and  combination, 
I  do  not  think  a  doubt  can  exist  in  the  mind  of 
any  one.  Turn  back,  gentlemen,  your  attention 
for  a  moment  to  the  facts,  and  then  say  whether 
the  assemblage  at  Parker's,  and  the  violence 
which  was  committed,  were  not  the  result  of 
concert  and  combination  ?  On  the  morning  of 
the  11th,  before  the  break  of  day,  as  Kline  and 
his  party  approached  the  house,  a  bugle  wa3 
sounded  behind  them;  horns  were  heard  to  blow 
in  the  neighborhood,  and  after  they  reached  the 
house  a  horn  was  blown  from  the  window.  "What 
was  the  object  of  sounding  these  horns  ?  The 
prisoner's  counsel  tell  you  they  were  breakfast 
horns,  blown  to  call  the  farmers  of  the  surround- 
ing county  to  their  morning  meal !  Break  of  day 
is  an  early  hour  for  breakfast ;  but  the  season 
at  which  people  go  to  work,  who  are  summoned 
to  breakfast  at  day-break,  must  be  earlier  still ! 
But  how  comes  it,  if  these  were  breakfast  horns, 
that  they  congregated  a  hundred  or  a  hundred 
and  fifty  armed  men  at  Parker's,  by  sunrise,  on 
that  particular  day  ?  Did  they  assemble,  armed 
and  ready  for  resistance  and  bloodshed,  by  mere 
chance  ?  Credulity  itself  would  be  staggered  in 
believing  so. 

But,  gentlemen  of  the  jury,  there  is  other  evi- 
dence of  concert  and  combination,  and  which 
shows  the  object  of  the  assemblage  at  Parker's. 
Isaiah  Clarkson,  a  leader  of  the  wretches  who 
committed  the  murder,  was  abroad  before  day, 
on  foot,  giving  notice  of  the  work  to  be  done, 
and  where  it  was  to  be  d  one.  _ha  ijah  Lewis  as- 
sisted him  in  arousing  the  neighborhood  :  and 
whilst  these  two  were  doing  duty  on  foot,  Wm, 
Scarlett,  another  of  the  confederates,  was  gallop- 
ing from  house  to  house,  summoning  those  who 
afterwards  appeared  at  Parker's,  in  arms.  Re- 
membering all  this — that  bugles  were  sounded 
and  horns  blown;  that  messengers  were  flying 
hither  and  thither,  and  that  the  summons  was 
answered  by  armed  bands,  who  were  ready  on 
the  ground  at  the  moment  of  need,  can  there  be 
any  doubt  either  of  the  previous  concert,  or  the 
object  of  such  concert?  The  negroes  were  told 
that  there  were  kidnappers  at  Parker's  ;  viz., 
that  there  were  masters  there,  in  pursuit  of  their 
fugitive  slaves.  Elijah  Lewis  tells  us  he  gave 
information  to  Jacob  Wood  that  the  kidnappers 
were  at  Parker's,  and  that  he  should  hasten 
there ;  and  that  masters,  pursuing  their  fugi- 
tives, are  denominated  kidnappers,  is  shown  by 
the  transaction  at  Chamberiin's,  given  in  evi- 
dence on  the  part  of  the  prisoner.  Even  the 
counsel  for  the  prisoner  speak  of  masters  as 
kidnappers,  making  no  distinction  between  them 
and  professional  man-stealers,  those  miscreants 
who  are  hateful  both  in  the  sight  of  God  and 
man. 

It  is  apparent  then,  is  it  not,  gentlemen,  that 
the  object  of  these  men  in  assembling  at  Par- 
ker's, armed,  was  to  prevent  the  execution  of 
the  law  by  force  and  intimidation  ?  It  was  not 
to  rescue  a  particular  individual,  or  particular 
individuals,  out  of  the  hands  of  the  law.  The 
29 


226 


TREASON  CASES. 


combination  was  to  resist  the  law  itself,  and  not 
merely  to  violate  it  in  a  particular  case,  in  refer- 
ence; to  a  particular  individual ;  for  neither  the 
master  nor  the  slaves  were  known  to  the  confed- 
erates. If  it  had  been  another  master,  pursuing 
a  different  slave,  at  another  time  and  place,  it  is 
not  to  be  doubted  but  that  their  conduct  would 
have  been  the  same.  This  being  the  case,  the 
act  was  treasonable  and  the  actors  traitors. 

So  far  in  the  disoussion,  gentlemen  of  the  jury, 
I  have  relied  upon  evidence  furnished  by  the  de- 
fence, or  which  is  unassailed  and  uncontradict- 
ed ;  and  as  yet,  I  have  made  no  attempt  to  con- 
nect Castner  Hanway  with  the  transaction,  ex- 
cept by  the  incidental  mention  of  his  presence  at 
Parker's,  on  the  morning  of  the  11th,  at  the 
time  the  overt  act  was  committed.  My  object, 
in  the  course  I  have  pursued,  was  to  show  you, 
by  evidence  which  has  not  been  impeached,  that 
the  outrage  committed  by  the  persons  assembled 
was  treasonable ;  that  their  object  was  to  pre- 
vent by  force  and  violence  the  execution  of  an 
Act  of  Congress,  and  not  merely  to  violate  it  in 
a  single  instance  for  a  particular  purpose.  Hav- 
ing done  this,  I  shall  next  proceed  to  trace  the 
prisoner's  connection  with  the  transactions  at 
Parker's  house,  adducing  as  I  go  along,  addi- 
tional facts  to  show  the  quo  animo,  or  intention 
of  the  more  active  parties  in  the  commission  of 
the  overt  act — that  is,  of  the  parties  already  re- 
ferred to,  and  who  were  the  authors  of  the 
murder,  and  other  acts  of  violence  committed  in 
resisting  the  execution  of  the  law.  And  in  his 
case,  I  shall  rely,  in  the  first  place,  as  I  have 
done  in  the  case  of  the  others,  on  the  evidence  in- 
troduced by  himself,  or  which  is  uncontx-adicted 
andunimpeached,  for  the  purpose  of  ascertaining 
his  connection,  and  the  extent  of  his  participa- 
tion with  the  other  parties,  in  the  criminal  acts 
committed  by  them. 

In  the  first  place,  gentlemen  of  the  jury,  it  is 
a  well  established  rule  of  law,  that  there  are  no 
accessaries  in  treason.  Those  who,  in  murder, 
arson  or  other  felonies,  would  be  merely  acces- 
saries before  or  after  the  fact,  are  principals  in 
treason,  liable  to  all  the  pains  and  penalties  of 
principal  traitors.  Mr.  Wharton,  in  his  treatise 
on  American  Criminal  Law,  has  expressed  a 
doubt,  whether  under  the  Constitution  and  laws 
of  the  United  States,  this  rule  of  English  juris- 
prudence has  not  been  abrogated  ;  and  as  au- 
thority for  the  doubt  he  expresses,  he  quotes  the 
opinion  of  Chief  Justice  Marshall,  in  the  case  of 
the  United  States  vs.  Aaron  Burr.  But  on  turn- 
ing to  the  opinion  referred  to,  it  will  be  found 
that  he  recognizes  the  rule  as  existing  here  in 
all  its  force.    2  Burr's  trial,  403,  4,  5. 

Accessaries  are  of  two  kinds,  viz  :  before  and 
after  the  fact.  But  as  it  is  only  the  rule  which 
respects  accessaries  before  the  fact,  to  which  I 
shall  have  occasion  to  refer,  I  shall  not  trouble 
you  by  defining  both.  An  accessary  before  the 
fact  "  is  he  that  being  absent  at  the  time  of  the 
felony  committed,  doth  yet  procure,  counsel  or 
abet  another  to  commit  it."  But  if  "  one  be 
present,  and  doth  counsel  or  abet  a  felony,  he  is 
a  principal  felon."  I  have  not,  however,  called 
your  attention  to  this  rule,  for  the  purpose  of  - 


showing  that  Castner  Hanway  is  punishable  aa 
an  accessary  ;  for  having  been  present,  as  it  is 
admitted  he  was,  at  the  time  the  overt  act  was 
committed,  he  is  a  principal,  and  liable  as  a 
principal,  provided  he  was  there  aiding  and  abet- 
ing  the  objects  of  the  confederate  parties. 

The  next  thing,  therefore,  to  be  considered, 
gentlemen,  is  what  is  the  legal  signification  of 
the  terms  "aiding  and  abeting  ?"  These  are 
familiar  legal  terms  which  have  received  a  judi- 
cial interpretation.  Foster's  Crown  Law,  a 
treatise  of  eminent  authority,  written  after  the 
ancient  severity  of  English  criminal  jurispru- 
dence had  given  way  before  the  milder  spirit  of 
a  more^  enlightened  age,  contains  numerous 
illustrations  and  definitions  of  these  words,  and 
of  their  signification,  both  in  Statutes  and  at  the 
Common  law.  One  of  the  principal  illustrations 
is  found  in  the  case  of  the  Earl  of  Somerset, 
who  was  indicted  upon  the  Statute  of  Philip  and 
Mary,  as  accessary  before  the  fact  to  the  mur- 
der of  Sir  Thomas  Overbury.  The  only  question 
was,  whether  the  Earl  could  be  said  to  have 
"caused,  procured,  or  aided"  in  the  murder, 
never  having  seen  or  conversed  with  Weston,  the 
principal,  who  had  been  incited  to  the  deed  by 
Lady  Somerset  and  Sir  Jervis  Elwys,  but  at  the 
instance  of  the  Earl.  He  was  found  guilty  of 
murder  ;  and  in  remarking  upon  the  subject,  the 
author  declares,  that  "  the  best  writers  on 
Crown  law  agree,  that  persons  procuring  or  even 
consenting  before-hand,  are  accessaries  before 
the  fact,"  and  of  course  punishable  as  princi- 
pals. 

He  then  proceeds  to  say,  that  Lord  Coke,  in 
his  "comment"  on  the  words,  "commandment 
and  aid,"  as  applied  to  accessaries  before  the 
fact,  in  the  Statute  of  Westminster  1,  c.  14,  de- 
clares that  "  under  this  word  command  are  com- 
prehended all  those  who  incite,  procure,  set  on, 
or  stir  up  any  to  do  the  fact.  And  under  the 
word  aid  are  comprehended  all  persons  coun- 
selling, abeting,  plotting,  assenting,  consenting 
and  encouraging  to  do  the  fact,  and  who  are  not 
present  when  it  is  committed." 

From  this  authority,  gentlemen,  you  will  see, 
that  either  to  assent  or  consent  to  the  commis- 
sion of  a  felony  is  to  aid  in  it,  and  become  ac- 
cessary to  it.  And  if  this  be  true  of  one  who  is 
absent  at  the  commission  of  the  act,  and  merely 
an  accessary,  it  cannot  be  less  true  of  one  who 
is  present  and  therefore  a  principal.  If  assent- 
ing or  consenting  to  a  felony,  on  the  part  of  one 
who  is  absent,  involves  him  in  all  the  guilt  of  a 
principal,  the  assent  or  consent  of  one  who  is 
present  will  surely  do  so  likewise. 

Lord  Hale  says,  "  misprision  of  felony  is  con- 
cealing a  felony  which  a  man  knoweth  but  never 
consented  to  ;  for  if  he  consented,  he  is  either  prin- 
cipal or  accessary."  And  in  another  paragraph, 
the  author,  Sir  Michael  Foster,  referring  to  an 
indictment  for  a  certain  felony,  says,  "  some  of 
the  words  made  use  of  in  the  present  indictment 
and  in  one  or  other  of  the  Statutes  upon  which 
it  is  founded  are,  command,  aid,  and  abet;  and 
the  passage  I  have  just  cited  from  Lord  Coke 
showeth,  that  persons  procuring,  contriving,  or 


UNITED  STATES  V.  HANWAY. 


227 


consenting,  come  within  the  words  aid  and  com- 
mand." 

From  the  authorities  I  have  just  read  you 
will  perceive,  gentlemen  of  the  jury,  that  one 
who  is  present,  aiding  and  abeting  in  the  com- 
mission of  a  felony,  is  a  principal ;  and  that  if 
he  be  present,  it  does  not  require  any  active 
participation  in  the  criminal  transaction  to  make 
him  a  principal  party  to  it,  and  a  sharer  in  the 
guilt  and  punishment.  If  he  counsels,  encour- 
ages, assents  or  consents  to  the  act,  it  is  enough; 
and  he  becomes  at  once  an  aider  and  abetter, 
and  obnoxious  to  all  the  pains  and  penalties  de- 
nounced against  it.  This  principle,  that  he, 
who  present  or  absent,  encourages,  or  consents 
to  the  commission  of  a  crime,  becomes  a  princi- 
pal party  to  it  being  applicable  to  felonies,  ac- 
quires additional  force  in  its  application  to  trea- 
son, inasmuch  as  ordinarily,  felonies  affect  but 
the  welfare  of  individuals,  while  treason  being 
a  crime  against  government,  affects  the  welfare 
of  nations. 

The  next  question  which  addresses  itself,  to  the 
jury,  is,  what  part  did  Castner  Hanway  act  at  the 
scene  of  violence  and  outrage?  That  he  was  there 
present  is  admitted  ;  that  he  went  there  on  sum- 
mons is  proved  by  Elijah  Lewis,  his  own  principal 
witness ;  that  his  object  in  going  there  was  to 
obstruct  and  hinder  the  claimant  of  a  fugitive 
slave  from  recovering  his  property,  is  next  to 
certain.  It  is  in  vain  to  attempt  to  cloak  his 
object  in  going  to  Parker's  under  the  guise  of  a 
wish  "to  see  justice  done."  That  his  motivewas 
to  prevent  the  master,  whether  Gorsuch,  or  Worth- 
ington,  or  Cockey,  or  whosoever  else  he  might  be, 
from  arresting  and  carrying  away  his  fugitive 
slaves,  is  hardly  to  be  doubted.  Lewis  only  halt- 
ingly and  hesitatingly  denies  it ;  while  the  whole 
of  Hanway's  own  conduct  goes  to  prove  it.  Let 
us  then,  gentlemen  of  the  jury,  glance  for  a 
moment  at  the  prisoner's  case  as  exhibited  by  the 
light  of  his  own  testimony,  or  at  least,  of  such  as 
is  uncontradicted.  What  kind  of  an  aspect  does 
it  present  ?  You  have  him  on  the  ground,  by  sun- 
rise, or  about  it.  His  arrival  is  greeted  by  huzzas, 
shouting  and  the  clashing  of  the  weapons  of  the 
negroes,  who  preceded  him  to  the  scene  of  action. 
Why  is  this  ?  Why  these  manifestations  of  joy  at 
his  approach,  if  it  were  accidental  ?  Why  salute 
him  as  an  army  salutes  its  chief,  if  his  presence 
had  not  some  inspiring  influence  ?  How  does  it 
happen  that  these  armed  bands  gather  around  him, 
and  load  their  guns  in  his  presence  without 
rebuke?  Why  is  it,  that  divesting  himself,  even 
of  the  commonest  feelings  of  humanity,  he  said 
not  a  word  to  turn  aside  the  blood-thirsty  purpose 
of  the  blacks  ?  Can  you  conceive  it  possible, 
gentlemen  of  the  jury,  in  view  of  his  own  conduct, 
and  in  view  of  the  conduct  of  the  negroes  towards 
him,  that  he  was  either  ignorant  of  the  object  for 
which  they  had  assembled  themselves  together, 
or  that  he  disapproved  of  it  ?  On  your  responsi- 
bility as  citizens,  without  yielding  totally  to  the 
influence  of  your  feelings  and  sympathies  as  men, 
say  whether  you  believe  Castner  Hanway  and  the 
negroes  went  to  Parker's  on  the  morning  of  the 
11th  of  September  with  purposes  in  conflict. 

But  as  yet,  gentlemen,  I  have  presented  to  you  ' 


in  my  argument,  only  a  portion  of  the  testimony 
going  to  show  that  Castner  Hanway  was  present 
at  the  Christiana  tragedy,  playing  a  principal  part 
in  it.  When  it  is  all  before  you,  you  will  have  no 
doubt  that  he  was  there,  an  aider  and  abettor  in 
whatever  crime  was  committed.  You  will  remem- 
ber that  Henry  W.  Kline,  the  marshal,  testifies, 
that  after  going  to  Parker's  house,  and  demanding 
Mr.  Gorsuch's  slaves,  who  were  refused,  a  parley 
took  place  and  a  cessation  of  hostilities  for  some 
fifteen  or  twenty  minutes  was  agreed  to ;  that  at 
this  time  the  negroes  in  the  house  appeared  dis- 
couraged, and  manifested  a  disposition  to  yield, 
which  became  still  more  observable  after  Kline 
had  made  a  feint  to  send  a  messenger  to  the  sheriff 
at  Penningtonville  for  an  additional  force.  It  was 
very  shortly  after  this  that  the  prisoner,  for  the 
first  time,  appears  upon  the  scene  of  action  ;  and 
it  will  be  worth  while  to  note  how  quickly  the 
aspect  of  everything  changed  on  his  appearance. 
As  he  rode  up  to  the  bars  situated  near  the  mouth 
of  the  short  lane,  leading  to  Parker's  house,  he 
was  received  with  huzzas  and  other  demonstra- 
tions of  welcome  by  the  besieged  negroes,  such 
as  brandishing  and  clashing  their  arms,  and 
stamping  their  guns  and  clubs  on  the  floor. .  And 
although,  before  his  arrival,  they  were  discou- 
raged, down-cast,  and  apparently  ready  to  give 
up,  yet  when  he  approached  they  immediately 
took  new  heart,  became  animated,  and  resolved  to 
hold  out  to  the  last.  Now,  gentlemen,  is  there 
nothing  to  be  inferred  from  this  extravagant 
rejoicing  by  the  negroes  at  the  appearance  of 
Hanway  ?  It  is  a  very  small  circumstance,  in 
itself,  I  know  ;  but  it  is  not  wdthout  significance 
and  importance.  Engaged,  as  they  were  in 
knowingly  resisting  the  execution  of  the  laws 
(for  it  must  be  remembered  the  warrants  had 
been  several  times  read  to  them)  the  appearance 
of  a  white  man  would  naturally,  nay  almost  cer- 
tainly inspire  the  negroes  with  fear  and  distrust. 
How  happens  it  then  that  the  appearance  of 
Castner  Hanway  was  received  with  shouts  of  con- 
gratulation ?  There  is  but  one  answer  to  this 
question,  and  it  is  this  ;  that  they  knew  him ; 
that  they  knew  he  was  with  them  in  sentiment 
and  sympathy ;  that  he  approved  their  conduct 
and  would  support  it,  and  not  only  in  what  they 
had  done,  but  in  what  they  proposed  to  do. 
Unless  they  had  known  all  this,  he  would  have 
been  received  in  silence,  cautiously  and  with  dis- 
trust. When  I  say  they  knew  that  Castner  Han- 
way approved  their  conduct,  and  would  support 
it,  not  only  in  what  they  had  done,  but  likewise 
in  what  they  proposed  to  do,  I  do  not  mean  to  say 
that  it  was  actually  concerted  between  him  and 
them,  in  advance,  that  Edward  Gorsuch  was  to 
be  slain,  or  any  special  act  of  the  kind  done,  but 
I  do  mean  to  say  their  general  line  of  conduct 
was  understood  between  them ;  and  although 
Castner  Hanway  may  not  have  been  committed 
to  every  incidental  and  collateral  act,  he  had 
nevertheless  accepted  the  scheme  as  a  whole  and 
stood  bound  for  all  its  consequences.  Can  this 
be  doubted  ?  Is  it  not  the  only  theory  which  will 
explain  his  conduct  and  theirs  ? 

Almost  immediately  after  the  demonstration 
of  the  negroes  at  the  house,  and  about  which  I 


228 


TREASON  CASES. 


have  just  spoken,  the  marshal,  at  the  suggestion 
of  Mr.  Gorsuch,  approached  Hanway  at  the  bars, 
and  commenced  a  conversation  with  him  by  ask- 
ing him  who  he  was,  and  at  the  same  time  showing 
him  his  warrants  for  the  apprehension  of  the 
fugitives.  To  the  question  of  Kline,  asking  the 
prisoner  who  he  was,  the  latter  answered,  "that 
is  none  of  your  business."  I  refer  to  this  to 
show  the  temper  in  which  he  came  to  the  scene 
of  action  ;  and  to  show  further,  that  if  his  object 
in  going  there  was  what  his  principal  witness, 
Elisha  Lewis,  declared  it  to  be,  that  "of  seeing 
justice  done,"  his  frame  of  mind  was  not  such 
as  to  qualify  him  to  discharge  the  duty,  which  he 
had  taken  upon  himself,  in  a  very  impartial 
manner. 

Whilst  the  conversation  was  in  progress  be- 
tween Kline  and  Hanway  at  the  bars,  and  shortly 
after  the  arrival  of  the  latter,  several  groups  of 
negroes,  armed  as  before  stated,  came  up  from 
various  directions,  a  portion  of  them  halting  near 
him,  where  they  loaded  their  guns  and  prepared 
for  the  onslaught  which  resulted  in  the  death  of 
Mr.  Gorsuch.  Kline,  after  showing  him  the 
warrants,  which  he  read  and  handed  to  Elijah 
Lewis,  who  had  come  up  in  the  meantime,  re- 
quested him  to  assist  in  executing  them.  Han- 
way positively  refused  to  assist,  declaring  in 
answer  to  the  demand  made  upon  him  to  do  so, 
that  "  the  negroes  had  a  right  to  defend  them- 
selves ;' that  the  party  need  not  come  there  to 
make  arrests ;  and  that  they  had  better  clear 
out  or  there  would  be  blood  spilt."  This  con- 
versation all  passed  in  the  presence  of  the  negroes, 
who  were  standing  around  armed,  ready  for  the 
attack  on  the  party  which  Castner  Hanway  in 
his  mind,  had  devoted  to  destruction.  Am  I  not 
justifiable  in  saying  this  party  was  devoted  to 
destruction — that  Castner  Hanway,  had  in  his 
mind,  devoted  it  to  destruction.  If  he  has  not, 
why  was  it  that  he  sat  on  his  horse,  whilst  the 
negroes  were  about  him  loading  their  guns, 
without  uttering  a  single  word  in  rebuke  of  their 
bloody  purpose — a  purpose  which  all  their  acts 
indicated  in  advance.  Not  only  did  he  not  re- 
buke them  ;  but  on  the  other  hand,  used  language 
which  was  calculated  to  inflame  them,  and  hurry 
them  on  to  the  execution  of  the  bloody  deed 
which  they  afterwards  committed.  The  blood  of 
Edward  Gorsuch  is  on  the  skirts  of  the  white 
men,  who  declared  in  the  presence  of  the  negroes, 
"that  they  had  a  right  to  defend  themselves," 
against  those  who  were  attempting  to  arrest  the 
slaves.  The  breaking  down  of  the  law,  and  the 
murder  of  an  unoffending  citizen,  must  lie  for 
ever  as  a  stumbling  block  at  the  door  of  Castner 
Hanway !  A  word  from  the  leader,  whose  ap- 
pearance was  announced  by  shouts  of  congratu- 
lation, would  in  all  probability  have  moderated 
the  bloody  purpose,  or  have  entirely  turned  it 
aside.  But  no  word  counselling  obedience  to  the 
laws  was  spoken ;  no  appeal  to  their  humanity 
was  made ;  no  caution  given  ;  no  attempt  of  any 
kind  to  turn  them  from  their  purpose.  On  the 
contrary,  they  were  told  in  substance,  that  they 
had  a  right  to  defend  themselves  ;  and  when 
they  heard  Castner  Hanway  say  to  Kline,  that  he 
and  his  party  had  better  clear  out,  or  there  would 


be  blood  spilt,  is  it  at  all  wonderful,  if  these 
people,  excited  before,  should  have  construed 
this  remark  into  a  suggestion  to  them,  to  spill 

blood  ? 

But  I  have  not  yet  called  your  attention  to  all 
that  was  said  by  Hanway,  on  the  occasion  refer- 
red to,  which  was  calculated  to  beget  in  the 
minds  of  the  negroes,  a  contempt  for  the  law, 
and  a  disposition  to  resist  it.  When  Kline  re- 
quested him  to  assist,  and  was  explaining  to 
him  that  the  act  of  Congress  required  him  to  do 
so,  he  answered,  that  "he  did  not  care  for  the 
act  of  Congress,  or  any  other  law."  This  decla- 
ration, made  in  the  hearing  of  the  negroes,  could 
have  no  other  tendency  than  to  ensure  its  viola- 
tion. Excited,  ignorant,  scarcely  aware  of  the 
consequences  to  themselves  or  others,  of  resisting 
the  laws  of  the  United  States,  such  a  remark, 
made  by  a  white  man,  in  whom  it  is  evident, 
from  the  testimony,  tbey  had  great  confidence, 
was  well  calculated  to  produce  the  violence  which 
ensued,  and  ensued  almost  immediately.  Shortly 
after  this  declaration,  which  was  followed  by  the 
one  I  have  referred  to  before,  and  which  was  to 
the  effect,  that  "  the  negroes  had  a  right  to  de- 
fend themselves,  and  that  Kline  and  his  party 
had  better  clear  out,  or  there  would  be  blood 
spilt,"  Hanway  moved  his  horse  nearer  to  the 
group  of  negroes,  and  stooping  towards  them, 
said  something  in  a  low  voice.  Immediately 
after  this,  having  walked  his  horse  across  the 
lane,  the  firing  on  the  part  of  the  negroes  com- 
menced, and  was  kept  up  until  the  party  which 
had  accompanied  Gorsuch  on  this  ill-fated  expe- 
dition, had  been  killed,  wounded,  or  dispersed. 

In  view  of  all  the  facts,  was  Hanway  present, 
aiding  and  abetting?  Or,  in  other  words,  being 
present,  did  he  assent  or  consent  to  what  was  done  ? 
This  is  the  question,  gentlemen  of  the  jury,  which 
in  view  of  all  the  facts  and  circumstances  of  the 
case,  you  must  decide — having  first  decided,  that 
the  object  of  those  who  assembled  at  Parker's, 
killed  Edward  Gorsuch,  and  dispersed  the  officer 
and  his  party,  was  by  force  to  obstruct  and  render 
nugatory  an  act  of  the  Congress  of  the  United 
States.  A  brief  recapitulation  of  the  facts  may 
aid  you  in  deciding  the  question.  That  Castner 
Hanway  was  present  at  Parker's,  is  not  denied  ; 
it  is  admitted  that  he  arrived  there  about  sun- 
rise ;  that  he  went  on  horseback,  and  was  soon 
followed  there  by  several  groups  of  negroes,  all  of 
them  armed;  that  before  his  arrival,  the  negroes 
in  the  house  were  dispirited,  and  appeared  to  be 
on  the  point  of  yielding ;  that  his  approach  was 
hailed  by  them  with  acclamations  and  rejoicing ; 
that  his  presence  gave  them  new  heart  and  en- 
couragement ;  that  a  group  of  negroes  who  fol- 
lowed him  to  the  ground,  halted  near  him,  and 
loaded  their  guns  in  his  presence  without  re- 
buke ;  that  having  been  called  on  by  the  officer 
to  aid,  he  refused  to  do  so  ;  he  said  the  negroes 
had  a  right  to  defend  themselves  ;  that  the  offi- 
cer need  not  go  there  to  make  arrests  ;  that  the 
party  had  better  clear  out  or  blood  would  be 
spilled;  that  he  did  not  care  for  the  Act  of 
Congress  or  any  other  law;  and  finally,  that  he 
went  to  the  ground  for  the  purpose  of  preventing 
the  execution  of  the  law  seems  to  be  certain, 


UNITED  STATES  V.  HANWAY. 


229 


without  reference  to  his  conduct,  as  exhibited 
by  the  facts  which  I  have  just  now  recapitulated 
to  you.  Lewis  told  him  there  were  kidnappers 
at  Parker's — that  is,  masters  in  search  of  their 
slaves — without  knowing  who  they  were,  and  of 
course  without  telling  him  who  they  were.  He 
knew  neither  masters  nor  slaves ;  but  went  with- 
out knowing,  to  prevent  their  recapture.  It  was 
not  then  to  resist  Mr.  Gorsuch  in  particular,  nor 
to  aid  Josh  and  Noah  in  particular,  but  to  pre- 
vent the  execution  of  the  laws,  for  whomsoever 
or  against  whomsoever  its  aid  might  be  invoked. 
Elijah  Lewis,  at  whose  instance,  it  is  alleged, 
Castner  Hanway  went  to  the  scene  of  action, 
does  not  pretend  to  say  that  it  was  to  resist 
kidnappers  in  the  legal  sense  of  the  term,  that 
they  went  there.  The  counsel  for  the  prisoner 
told  you,  that  there  had  been  several  cases  of 
real  kidnapping  in  the  neighborhood  of  Chris- 
tiana ;  and  that  in  consequence  a  general  feeling 
of  insecurity  and  alarm  prevailed  amongst  the 
people.  To  prove  one  of  these  cases,  Miller 
Pennington,  a  witness,  was  called ;  but  instead 
of  proving  that  the  case  to  which  he  referred, 
was  a  case  of  genuine  kidnapping,  he  furnished 
very  conclusive  evidence  that  it  was  not.  And 
at  a  subsequent  stage  of  the  trial,  you  will  re- 
member that  the  counsel  for  the  prisoner  them- 
selves, stated  that  they  had  never  designed  to 
assert,  that  the  negro  carried  away  from  Cham- 
berlin's,  (the  case  to  which  Miller  Pennington 
referred)  was  a  freeman.  Thus  you  see,  gentle- 
men of  the  jury,  that  the  object  of  the  prisoner 
in  going  to  Parker's,  was  to  prevent  the  execu- 
tion of  the  law,  without  knowing  who  had. 
invoked  redress  through  its  instrumentality, 
or  against  whom  its  authority  was  directed. 

But  there  is  other  evidence  to  which  your 
attention  has  not  been  called,  corroborative  of 
the  evidence  of  participation  already  given.  The 
day  after  the  transaction,  Kline  met  Hanway  and 
Lewis  at  Christiana,  and  said  to  them,  "  You 
white-livered  scoundrels  you,  when  I  pleaded  to 
you  yesterday,  like  a  dog,  for  my  life  and  the 
life  of  my  men,  and  begged  you  not  to  let  the 
blacks  fire  upon  us,  you  turned  round  and  told 
them  to  do  so."  Lewis  replied  immediately,  "  I 
did  not,"  but  Hanway  said  nothing. 

You  will  recollect,  gentlemen,  Kline  states  in 
his  testimony,  that  just  before  the  firing  com- 
menced, Hanway  moved  his  horse  over  towards 
the  group  of  negroes,  and  stooping  down,  said 
something  in  a  low  voice,  which  he  did  not  hear; 
and  that  directly  afterwards,  having  walked  his 
horse  across  to  the  other  side  of  the  lane,  the 
firing  commenced.  Kline  believed  that  what 
Hanway  uttered,  in  a  voice  too  low  for  him  to 
hear,  was  an  order  to  the  negroes  to  fire  ;  and  he 
was  induced  to  believe  so,  I  presume,  from  the 
circumstance  that  the  firing  commenced  imme- 
diately after  the  words  were  spoken,  or  as  soon 
at  least  as  he  could  get  his  horse  and  himself  out 
of  the  way.  But  when  he  was  charged  with 
doing  so,  if  he  were  not  guilty,  why  did  he  not 
deny  it  ?  Lewis  did  so  promptly,  because,  being 
innocent,  it  was  natural  to  do  so.  And  why,  I 
repeat,  did  not  Hanway  deny  it?  "  Silence  is 
consent."    This,  gentlemen  of  the  jury,  is  one  of 


those  homely  but  true  sayings,  which  has  settled 
down  into  a  maxim  of  the  world's  wisdom,  and  is 
acted  upon  by  all — by  judicial  tribunals  as  well 
as  by  individuals  in  the  every  day  transactions  of 
life.  Men  act  upon  this  principle  instinctively. 
Were  I  to  charge  Mr.  Martin  (one  of  the  jurors) 
with  some  base  act,  of  which  he  is  not  guilty,  he 
would  deny  it  instantly ;  and  probably  resent  it 
besides.  More  certainly  would  he  do  so,  if  I 
were  to  charge  him  with  a  crime.  Suppose  the 
Sheriff  should  levy  on  Mr.  Sadler's  (one  of  the 
jurors)  farm,  in  satisfaction  of  another  man's 
debt,  and  sell  it  to  me,  Mr.  Sadler  standing  by  in 
silence  : — in  such  a  case  he  would  lose  his  farm  ; 
the  law  would  presume  that  it  was  not  his,  be- 
cause he  was  silent  when  he  should  have  spoken 
out.  But  this  maxim,  that  "  silence  is  consent," 
has  a  further  application  to  this  case,  to  which  I 
desire  to  call  your  attention.  Hanway  we  know 
was  present  at  Parker's  house,  and  some  of  the 
acts  which  have  been  proved,  were  done  in  his 
presence,  as,  for  example,  the  loading  of  the  guns 
by  the  negroes  ;  and  remaining  silent  in  relation 
to  the  act,  his  assent  to  it,  according  to  this 
maxim,  is  implied.  That  this  maxim  is  con- 
sistent with  the  principles  of  common  sense,  and 
is  acted  upon  in  all  the  transactions  of  life,  and. 
in  every  department  of  human  affairs,  I  need  not 
go  to  books  to  prove.  Without  books  to  prove  it, 
your  own  experience  will  commend  it  to  you. 

But  it  has  been  argued  to  you  that  Hanway 
did  speak  out,  and  speak  his  dissent  from  the  acts 
and  proceedings  of  the  negroes.  To  prove  that  he 
did  dissent,  the  testimony  of  Elijah  Lewis  is  re- 
ferred to.  He  s&ys  he  heard  Hanway  exclaim, 
"  Don't  shoot,  don't  shoot;  for  God's  sake  don't 
shoot !"  Mr.  Lewis  is  not  very  explicit  as  to  the 
time  this  exclamation  was  made  ;  and  I  think 
you  must  have  remarked  that  there  was  some- 
thing singularly  equivocal,  if  not  contradictory, 
in  this  part  of  his  testimony.  You  will  remem- 
ber that  he  states  he  had  left  the  ground  before 
the  firing  commenced,  and  that  Hanway  left  about 
the  same  time,  or  directly  afterwards.  If  there 
was  no  attempt  to  fire  by  the  negroes  while  he 
was  there,  and  he  does  not  say  explicitly  there 
was,  why  the  exclamation,  "Don't  shoot!  don't 
shoot !  for  God's  sake  don't  shoot !"  on  the  part 
of  Hanway?  But  if  the  negroes  were  really 
about  to  shoot,  but  were  so  thoroughly  under  the 
control  of  Hanway  as  to  be  restrained  from  their 
purpose  by  a  word,  why  did  he  retire  from  the 
ground,  leaving  the  Gorsuches  to  the  bloody  fate 
which  he  must  have  seen  was  impending  over 
their  heads  ?  Adopting  the  view  of  the  case,  in 
which  Lewis'  testimony  seems  to  present  it,  the 
conduct  of  Hanway  in  leaving  these  men,  whom 
he  had  the  power  to  save,  at  the  mercy  of  the 
negroes,  thirsting  for  their  blood  and  ready  to 
shed  it,  is  an  outrage  upon  humanity,  worse 
than  that  which  the  negroes  afterwards  commit- 
ted. God  save  me  from  the  salvation  brought  me 
by  my  own  witness,  he  may  well  exclaim  ! 

But  is  Mr.  Lewis  mistaken,  and  was  the  ex- 
clamation, "  Don't  shoot,  don't  shoot,"  &c,  ut- 
tered sometime  afterwards,  when  Hanway  was 
retiring  along  the  lane,  Dr.  Pierce  and  Joshua 
Gorsuch  following  him.  the  latter  wounded  and 


230 


TREASON  CASES. 


clinging  to  his  stirrup,  begging  him  for  God's 
sake  to  take  him  up,  and  save  him  from  the  fury 
of  the  negroes  ?  At  this  time,  as  it  appears  from 
other  testimony,  Hanway  did  make  some  depre- 
cating exclamations,  such  as  those  attributed  to 
him  by  Mr.  Lewis.  This  was  done  when  the 
guns  of  the  negroes  were  pointed  on  Dr.  Pierce 
and  Joshua  Gorsuch,  who  were  clinging  about  his 
feet,  and  endeavoring  to  shelter  themselves  be- 
hind his  horse.  A  ball  discharged  at  one  object 
sometimes  strikes  another  in  the  neighborhood  ; 
and  a  knowledge  of  this  important  fact  may  have 
been  the  motive  for  the  deprecating  exclamation, 
"  Don't  shoot,  for  God's  sake,  don't  shoot !"  But 
suppose  it  was  otherwise  ;  and  that  the  exclama- 
tion was  uttered  with  a  view  to  save  the  flying 
remnant  of  the  Gorsuch  party  !  "What  then  ?  Is 
it  a  strange  thing  for  a  victorious  leader  to  sheath 
the  sword  and  give  quarter  when  the  battle  is 
over?  Resistance  to  the  execution  of  the  law 
having  been  successful  previous  to  the  time  that 
Hanway  was  besought  by  Pierce  and  Gorsuch  to 
save  them,  what  object,  beyond  a  gratuitous 
thirst  for  blood,  could  have  induced  him  to  refuse 
them?  Adding  other  victims  to  the  number  sa- 
crificed, would  not  have  made  the  triumph  of  the 
confederate  parties  over  the  law  a  whit  more 
complete.  Nor  did  saving  Pierce  and  Gorsuch 
from  the  guns  and  scythes  of  their  pursuers,  de- 
rogatefrom  the  force  of  the  facts  proved  against 
Hanway.  He  is  indicted  for  treason  ;  but  mur- 
der being  no  necessary  ingredient  in  the  crime, 
interfering  to  prevent  its  commission  is,  there- 
fore, no  justification. 

The  principal  testimony  in  the  case,  and  I  be- 
lieve all  that  is  calculated  to  establish  the  two 
main  points  of  it,  viz. :  the  character  and  object 
of  the  commission  of  the  overt  act,  and  the  parti- 
cipation of  Castner  Hanway  in  it,  having  been 
briefly,but  in  a  connected  manner,  recalled  to 
your  minds,  I  shall  now  proceed  to  notice  such 
portions  of  the  testimony  as  have  been  either  di- 
rectly contradicted  or  otherwise  assailed.  And, 
what  in  reference  to  this  part  of  the  case  has  ap- 
peared the  most  singular  to  me,  is  the  fewness 
and  comparative  unimportance  of  the  contradic- 
tions in  the  testimony,  in  material  parts.  The 
principal  contradictions  occur  in  the  testimony  of 
Kline  and  Lewis  ;  yet  even  these  contradictions 
are  of  little  importance,  except  in  so  far  as  they 
show  a  general  inaccuracy  of  recollection,  or 
carelessness  in  regard  to  the  truth. 

You  will  remember,  gentlemen,  that  all  the 
material  circumstances,  sworn  to  by  Henry  H. 
Kline,  in  relation  to  the  transaction  at  or  about 
Parker's  house,  are  corroborated  by  Dr.  Pierce,  the 
two  Gorsuches,  Nicholas  Hutchings,  and  Nathan 
Nelson.  To  the  arrival  of  Hanway;  the  discourage- 
ment of  the  negroes  when  he  came  up  ;  the  effect 
of  his  presence  in  restoring  a  spirit  of  resistance  ; 
the  fact  of  being  followed  shortly  by  bands  of 
armed  negroes,  who  loaded  their  guns  in  his  pre- 
sence without  rebuke ;  his  reading  the  war- 
rants and  refusing  to  assist ;  his  declaration  that 
they  need  not  come  there  to  make  arrets  ;  that 
he  made  no  effort  to  quell  the  violence  which  was 
menaced — all  these  facts  are  proved  either  by  all 
or  a  portion  of  the  witnesses  I  have  just  named. 


It  is  only  in  relation  to  the  declarations  of  Han- 
way, that  "  he  did  not  care  for  the  Act  of  Con- 
gress, or  any  other  act,"  and  that  "  the  negroes 
had  a  right  to  defend  themselves,  and  that  he  had 
better  clear  out,  or  there  would  be  blood  spilt," 
that  Kline  is  not  corroborated.  But  how  natural 
is  it,  from  the  rest  of  his  conduct,  that  Hanway 
should  have  made  these  declarations  ?  Did  not 
the  whole  of  his  conduct  show  that  he  did  not 
care  for  the  act  of  Congress  ?  and  that  he  was  in 
favor  of  the  negroes  defending  themselves?  Is 
it  not  evident  from  the  fact  that  he  made  no-'at- 
tempt  to  inculcate  into  them  a  respect  for  the 
law,  or  to  restrain  them  from  committing  acts  of 
violence?  From  the  testimony  of  Elijah  Lewis 
it  would  appear  that  a  single  exclamation  from 
Hanway  was  sufficient  to  restrain  them  in  their 
attempts  at  violence.  The  exclamation,  "  Don't 
shoot,  for  God's  sake  don't  shoot!"  turned  aside 
their  weapons,  if  Lewis  is  to  be  believed. 

One  of  the  principal  contradictions  between 
Kline  and  Lewis,  is  in  regard  to  the  position  of 
Hanway  in  the  neighborhood  of  Parker's  house, 
Kline  says  he  rode  into  the  short  lane,  and 
stopped  at  the  bars  ;  Lewis  denies  that  he  was  at 
the  bars,  or  in  the  short  lane  at  all.  Kline's 
statement  is  supported  by  Dr.  Pierce,  Joshua  and 
Dickenson  Gorsuch,  Nicholas  Hutchings,  and 
Nathan  Nelson,  who  all  swear  that  Hanway's 
position  was  in  the  short  lane,  at  the  bars. 

Lewis  swears  that  Kline  did  not  give  the 
warrants  to  Hanway  to  read.  Kline  swears  he 
did  ;  and  so  do  Dr.  Pierce,  Dickenson  Gorsuch, 
and  Nicholas  Hutchings. 

Lewis  swears  that  before  the  firing  commenced, 
Kline  crossed  the  fence  into  the  cornfield,  and 
never  got  back  to  the  scene  of  action  at  all. 
Kline  swears  that  he  crossed  the  fence  at  the 
time  the  firing  commenced,  in  order  to  save  him- 
self; but  that  he  shortly  afterwards  returned, 
and  finding  Dickenson  Gorsuch  badly  wounded, 
led  him  up  to  the  woods  and  set  him  down  by  a 
stump.  Dickenson  Gorsuch  swears  that  Kline 
was  there  and  assisted  him ;  and  John  Nott 
swears  to  the  same  thing. 

These  are  the  principal  cases  of  contradiction 
between  Lewis  and  Kline  ;  and  it  will  be  seen 
wherever  a  contradiction  has  occurred  between 
them  in  relation  to  facts  of  which  others  were 
cognizant,  as  well  as  themselves,  that  Kline  has 
been  uniformly  sustained.  But  another  attempt 
to  fix  falsehood  upon  Kline,  is  based  upon  the  fact, 
that  when  he  met  Hanway  and  Lewis  at  Chris- 
tiana, the  day  after  the  outrage  at  Parker's,  he 
charged  them  with  having  incited  the  negroes 
to  violence.  His  language  on  the  occasion,  as 
you  will  remember,  was,  "  You  white-livered 
scoundrels,  when  yesterday  I  pleaded  to  you  for 
my  life  like  a  dog,  and  begged  you  not  to  let  the 
blacks  fire  upon  us,  you  turned  round  and  told 
them  to  do  it."  This,  the  prisoner's  counsel  say 
is  false,  because  Kline,  neither  in  his  testimony 
at  Christiana  or  at  Lancaster,  pretends  that 
either  Hanway  or  Lewis,  ordered  the  negroes  to 
fire.  This  is  true ;  Kline  did  not  at  either 
place  swear  that  Hanway  or  Lewis,  ordered  the 
negroes  to  fire;  and  he  does  not  now  swear  that 
they  did.    But  you  may  remember  Kline  swears, 


UNITED  STATES  V.  HANWAY. 


231 


that  immediately  after  Hanway's  declaration,  Did  he  manifest  a  disposition  to  volunteer  what 
that  -'the  negroes  had  a  right  to  defend  them-  would  aid  the  prosecution,  or  to  keep  back  what 
selves,"  he  walked  his  horse  over  towards  where  would  aid  the  defence  ?  There  is  generally 
a  group  of  them  was  standing,  and  stooping  something  in  the  deportment  of  a  witness,  which 
down  said  something  in  a  low  voice.  "What  was  stamps  his  testimony  with  the  characteristics 
said  by  Hanway,  Kline  did  not  hear  :  but  from  of  truth  or  falsehood,  and  that  without  reference 
the  fact  that  the  firing  commenced  as  soon  as  to  the  fact,  whether  the  testimony  is  corroborated 
he  had  withdrawn  to  the  other  side  of  the  lane,  or  not.  Kline  testified  with  candor,  though 
he  inferred  that  it  was  an  order  to  fire;  and,  under  the  disadvantage  which  is  inseparable  from 
accordingly,  when  he  met  them  together  the  next  partial  deafness.  But  what  motive  could  actuate 
day,  he  charged  them  both,  with  what  he*  sup-  him  in  the  commission  of  a  crime  so  diabolical  as 
posed  the  one  had  done  ;  and  this  he  did  in  the  perjury  would  be  in  a  case  like  this  ?  In  serious 
presence  of  Alderman  Reigart  and  Mr.  Proud-  matters  men  act  under  the  influence  of  motives, 
foot,  who  both  corroborate  his  statement  in  And  what  motive  could  Kline  have  to  swear  away 
every  particular.  Now,  what  is  there  in  this  the  life  of  Hanway  ?  "What  motive  can  he  have 
to  base  a  charge  of  perjury  upon?  Yet,  gentle-  in  swearing  as  he  has  done,  if  his  object  be  to 
men,  it  is  upon  discrepancies  like  this — -discre-  '  take  away  his  life  ?  Why,  if  impelled  by  malice 
pancies,  which  when  they  come  to  be  examined,  to  commit  an  act  of  such  damnable  atrocity,  a-s 
turn  out  to  be  no  discrepancies,  that  Henry  H.  that  of  convicting  an  innocent  man,  did  he  not 
Kline,  is  charged  with  willful,  wicked,  deliberate,  swear  at  once  to  enough  to  effect  his  object 
corrupt  perjury.  It  is  because  he  is  contradicted  without  doubt.  Two  or  three  words  added  to 
by  Elijah  Lewis,  a particeps  criminis  of  the  pri-  his  testimony,  and  all  question  about  the  inten- 
soner,  that  the  vocabulary  of  vituperation  has  tion  of  the  prisoner  would  have  been  at  an  end. 
been  opened,  and  whole  pages  of  abuse  poured  ;  If  what  he  has  sworn  to  is  false,  why  did  he 
upon  his  head.  It  is  for  this  reason,  too,  that  not  add  to  it  a  single  sentence,  a  few  words  more, 
the  purlieus  of  the  city  have  been  scoured  by  to  make  assurance  sure  ?  2No  scruples  of  con- 
Jacob  Albright,  the  industrious  agent,  charged  science  would  prevent  a  man  from  uttering  two 
with  this  part  of  the  defence,  for  men  to  swear  or  three  false  words,  who  has  already  sworn  to  a 
him  down.  But.  gentlemen,  in  this  city — in  any  volume  of  falsehoods.  But,  gentlemen.  I  reiter- 
large  city,  do  you  suppose  it  is  a  difficult  matter  ate  the  question  which  I  asked  you  before  ; 
to  find  creatures,  bred  from  its  corruptions,  like  what  motive  can  Henry  H.  Kline  have  in  swear- 
reptiles  from  the  slime  of  the  Nile,  who  are  ing  to  that  which  must  consign  Castner  Hanway 
ready  at  need  to  asperse  and  drag  down,  if  pos-  to  an  ignominious  death  upon  the  scaffold  ?  He 
sible,  to  their  own  level  of  degradation,  the  cha-  can  derive  no  benefit  from  his  conviction  ;  it  will 
racter  of  the  best  and  purest  citizens  in  the  make  him  neither  richer  nor  happier.  But,  if 
community.  A  number  of  such  have  been  found,  innocent,  Hanway  should,  nevertheless,  be  found 
I  will  «wt  say  that  twenty-six  such  have  ap-  guilty  on  Kline's  false  testimony,  what  will  be 
pearei  here  for  such  a  purpose;  for  some  of  the  feelings  of  the  latter,  if  there  be  remaining 
the  persons  called  may  have  been,  and  doubtless  in  his  heart  but  one  single  drop  of  uncorrupted, 
v-iTe  honest,  upright  and  conscientious  men.  But  unpolluted  human  sympathy  ?  Can  there  be  on 
these  persons,  without  their  own  knowledge,  have  earth  a  man  so  utterly  bad  ;  would  even  a  pupil- 
become  the  victims  of  a  prejudice,  cultivated  in  age  in  Hell  itself  deprave  him  to  that  point,  that 
secret,  but  which  has  borne  fruit  in  public  here  in  cold  blood,  deliberately,  he  would  come  for- 
in  the  Court.  But  if  Kline  has  been  rudely  as-  ward  to  swear  away  the  life  of  a  fellow  creature, 
sailed,  has  he  not  been  generously  sustained,  and  under  such  circumstances  as  these?  I  cannot 
triumphantly  vindicated.  Have  not  the  asper- ;  believe  it,  though  the  prisoner's  counsel  may. 
sions  of  his  enemies  been  wiped  away  entirely  by  Before  quitting  this  branch  of  the  case,  it  is 
his  friends.  To  counterbalance  the  twenty-six,  proper  we  should  examine  the  testimony  of 
who  swear  that  his  character  for  veracity  was  Elijah  Lewis,  and  inquire,  whether  there  be 
bad,  seventy  odd  men,  many  of  them  gentlemen  ■  reasons  lor  suspecting  him  of  being  biased,  or 
of  the  highest  respectability,  numbering  amongst  \  operated  on  by  any  considerations  likely  to  in- 
them  lawyers,  aldermen,  mechanics,  the  Chief  ,  cline  him  to  one  side  or  the  other.  Mr.  Lewis 
Marshal  of  Police,  and  many  of  his  subordinates,  >  is  the  main  witness  for  the  prisoner,  and  is  in- 
have  come  forward  to  swear  that  his  character  dieted  fcr  the  same  crime.  In  his  testimony,  he 
was  good,  and  that  they  would  have  no  hesita-  states  that  after  notifying  Hanway  of  what  was 
tion  in  believing  him  on  oath  ;  and  many  of  these  going  on  at  Parker's,  they  both  went  there,  he 
nen  who  have  known  him  for  twenty-five  or  across  the  fields  on  foot,  Castner  Hanway  by  the 
tiirty  years,  had  never  heard  his  character  for  '  road  on  horseback ;  that  they  both  arrived  there 
Tenacity  impeached,  until  after  the  occurrence  of  !  about  the  same  time,  though  Hanway  a  little  in 
theChristiana  outrage.  It  was  then  that  it  be-  advance  ;  that  Hanway  never  -went  to  the  bars, 
2an*  necessary  to  furbish  up  rusty  recollections,  but  remained  at  the  end  <«  the  lane,  where 
of  what  his  character  fot  veracity  had  been.  Kline  joined  them  :  that  ie  was  present  during 
The  fesult  of  the  search  you  have  seen  on  the  the  conversation  between  Kline  and  Hanway  ; 
Stand.  that  the  former  <&d  not  give  the  warrants  to 

But.  Tentlemen  of  the  jury,  what  is  there  in  Hanway.  but  to^im,  and  that  he  having  forgot- 
Kline's  -onduct,  that  justifies  a  charge  of  per-  ten  his'spectarfes  handed  them  to  Hanway:  that 
jury?  Yas  there  a  want  of  candor  in  his  con-  Hanway  mad<  none  of  the  declarations  imputed 
duct  on  t.e  stand,  whilst  testifying  in  the  case  ?    to  him  by  Ki-'ne  ;  that  Kline  left  before  the  firing 


\ 


232 


TREASON  CASES. 


commenced  and  did  not  return;  that  Hanway 
did  interpose  by  calling  out,  "Don't  shoot,  don't 
shoot,  for  God's  sake  don't  shoot !"  &c,  &c.  This 
is  in  substance,  the  amount  of  Mr.  Lewis'  testi- 
mony. Against  the  character  of  Elijah  Lewis,  I 
know  nothing.  He  may  be,  and  no  doubt  is,  an 
honest  man  in  his  dealings  and  intercourse  with 
his  neighbors ;  and  he  may  be,  for  any  thing 
that  I  know  to  the  contrary,  a  man  of  exemplary 
veracity.  But  from  his  testimony,  I  infer  that 
he  is  one  of  that  class  of  individuals,  who  fixing 
their  attention  on  some  vice  of  the  times,  or  on 
something  in  religion  or  government  which  they 
deem  pernicious,  permit  themselves  to  become  so 
wholly  absorbed  in  its  contemplation,  that  they 
forget  there  are  other  vices  and  wrongs  in  the 
world,  which  claim  their  notice  or  need  reforma- 
tion. Seeing  but  the  one  evil  and  regarding  no 
other,  it  soon  assumes  in  their  minds  proportions 
of  such  a  threatening  magnitude,  that  they  won- 
der at  any  one  who  fails  to  see  it  as  the  great 
fountain,  from  whence  every  thing  that  is  cor- 
rupt and  polluted  flows.  With  Elijah  Lewis, 
slavery  is  the  one  great  evil  of  the  times;  and 
he  sees  no  other,  and  doubtless  wonders  how  you 
or  I  can  see  any  other.  The  law  which  recog- 
nizes and  protects  the  institution  of  slavery, 
although  a  law  of  his  country,  has  no  binding 
obligations  on  his  conscience,  and  he  refuses  to 
obey  it ;  and  those  who  do  obey  it,  in  certain  of 
its  requirements,  in  his  opinion  are  kidnappers 
and  manstealers.  All  the  unnumbered  benefits 
and  blessings  which  the  constitution  secures  to 
the  country;  its  marvellous  past  history;  its 
glorious  future  destiny,  if  peace,  harmony  and 
the  Union  be  preserved,  all  are  obscured  and 
hidden  from  his  view,  by  this  one  provision  re- 
specting slavery,  for  which  he  is  not  answerable, 
and  from  which  he  can  suffer  no  injury,  could  he 
but  make  up  his  mind  that  he  had  nothing  to  do 
with  its  origin  and  as  little  with  its  continuance. 

Regarding  slavery  in  this  light,  and  Castner 
Hanway  as  a  martyr  to  its  revengeful  spirit,  his 
feelings  and  prejudices  are  all. strongly  enlisted 
in  his  favor.  These  feelings  alone  would  produce 
a  bias  unfavorable  to  the  truth,  were  there  noth- 
ing else ;  but  unfortunately  there  are  other  con- 
siderations operating  in  the  same  way.  I  have 
already  informed  you  that  Elijah  Lewis  is  indict- 
ed for  the  same  offence  as  that  for  which  Castner 
Hanway  is  now  upon  his  trial.  He  is,  therefore, 
operated  upon  by  the  strongest  motives  that  can 
influence  a  human  being — by  motives  of  self- 
preservation.  If  his  testimony  should  acquit 
Castner  Hanway,  Castner  Hanway's  may  be  then 
invoked  to  acquit  him.  But  this  is  not  all.  If  Mr. 
Lewis  had  sworn  before  you,  to  facts  unfavorable 
to  Hanway,  or  proving  his  guilt,  these  facts  would 
be  given  in  evidence  against  him  on  his  own 
trial.  To  con\ict  Hanway  would  convict  him- 
self, for  the  simplb  reason  that  acting  together  in 
a  common  design,  what  would  be  evidence  against 
one,  would  be  evidence  gainst  the  other.  But 
even  if  this  were  not  so,  the  acquittal  of  Castner 
Hanway,  would  have  a  most  important  and  fa- 
vorable bearing  in  acquitting  i,ewis  and  the 
others,  hereafter  to  be  tried. 

With  such  motives  to  operate  on  him,  is  it  pos- 


sible, in  the  nature  of  things,  that  he  could 
testify  without  bias?  The  best  and  wisest  men 
are  swayed  imperceptibly,  but  not  the  less  cer- 
tainly, by  their  interests.  In  this  case,  friend- 
ship, prejudice,  self-interest  amounting  to  self- 
preservation,  all  united  to  sway  Lewis.  And  not 
to  have  yielded  argues  virtue  and  firmness  more 
than  human.  But  he  did  yield.  His  bias  was 
manifest.  And  here  let  us  notice  some  of  his 
mistakes.  He  swears  that  Hanway  did  not  go 
to  the  bars.  Kline,  Dr.  Pierce,  Joshua  and 
Dickenson  Gorsuch,  Nicholas  Hutchings  and  Na- 
than Nelson  swear  that  he  did.  He  swears  that 
Kline  did  not  give  his  warrants  to  Hanway. 
Kline,  Pierce,  Dickenson  Gorsuch  and  Hutchings 
swear  he  did.  He  swears  that  Hanway  made 
none  of  the  declarations  imputed  to  him  by 
Kline.  Dr.  Pierce,  as  well  as  Kline,  swears  that 
he  did  say,  "  You  need  not  come  here  to  make 
arrests."  He  swears  that  Kline  left  the  ground 
at  Parker's  before  the  firing  commenced,  and  did 
not  return.  Kline,  Dickenson  Gorsuch  and  John 
Nott  say  he  did  return,  and  finding  Dickenson 
Gorsuch  badly  wounded  he  led  him  up  to  the 
woods  and  got  water  for  him.  These  are  some 
of  the  contradictions ;  and  there  are  others 
which  I  will  not  weary  you  by  attempting  to 
trace.  These  mistakes,  I  would  be  willing  to  set 
down  to  the  score  of  fear ;  but  there  are  other 
portions  of  his  conduct  for  which  charity  can 
scarcely  find  an  extenuating  motive.  To  refuse 
a  drink  of  water  to  a  wooded  man,  sick  and 
almost  dying,  exhibits  such  a  want  of  humanity 
and  ordinary  sympathy,  as  to  be  repugnant  to 
every  generous  feeling  of  human  nature.  Even 
enemies,  meeting  and  striving  on  the  field  of 
battle  till  one  or  the  other  falls,  are  generally 
ready  to  proffer  aid  and  sympathy  to  the  suffer- 
ing and  the  fallen.  But  Mr.  Lewis,  it  see^S;  is 
above  these  amiable  inconsistencies.  The  Trar 
that -he  wages,  he  wages  to  the  death,  thinking,  I 
suppose,  that  if  it  be  Avorth  while  to  endeavor  tc 
kill,  it  would  be  folly  to  endeavor  to  cure.  But 
I  do  not  desire  to  pursue  this  subject  farther.  I 
have  shown  that  there  are  motives  in  Mr.  Lewis' 
case,  too  powerful  to  be  resisted  even  by  the  best 
and  firmest  of  men.  This  is  enough  for  my  pur- 
pose ;  I  shall,  therefore,  hasten  on,  as  rapidly  as 
I  can,  to  a  conclusion. 

There  are  many  other  facts  in  this  case,  to 
which  I  can  afford  but  a  passing  notice.  The 
state  of  public  sentiment  in  the  neighborhood  in 
which  this  outrage  against  the  laws  of  the  coun- 
try was  committed,  is  very  clearly  manifested, 
not  by  the  testimony  of  any  particular  witness, 
nor  in  regard  to  any  act  done  by  any  particular 
individual,  or  number  of  individuals,  but  by  th« 
testimony  of  all  combined,  in  reference  to  nil 
that  was  done.    A  premeditated  silence  is  ob- 
served by  every  body  in  the  vicinity  of  the  jut- 
rage  ;  and  it  is  only  by  accident  that  any  fact 
comes  to  be  disclosed.     A  great  outrage  like 
that  at  Christiana,  accompanied  by  muner,  is 
generally  followed  by  intense  excitemert ;  the 
indignation  of  the  people  is  aroused,  andthe  per- 
petrators of  tie  deed  pursued  and  bought  to 
justice.    But  in  this  instance,  a  persorering  si- 
lence has  been  maintained.    Men  are  ndisposed 


UNITED  STATES  V.  HANWAY. 


233 


to  give  information  of  facts  in  their  possession.  I  the  perpetrators  as  far  as  possible  ?  .  Why,  I 
A  respectable  physician,  who  was  called  on  the  j  repeat,  if  it  were  otherwise,  was  it  necessary 
day  of  the  outrage  to  dress  the  wounds  of  certain  j  that  a  lying  verdict,  casting  reproach  and  blame 
negroes,  who  participated  in  its  commission,  never 
mentioned  the  circumstance  to  any  body.  He 
extracted  the  bullets  from  their  wounds,  without 
asking  when,  where,  or  how  they  had  received 
them.  How  does  it  happen  that  he  had  no  curi- 
osity to  know  how  they  came  by  their  wounds  ? 
How  does  it  come  that  he  felt  no  interest  in  as- 
certaining whether  the  laws  had  been  violated  or 
not  ?  Is  it  to  be  doubted  that  this  man  knew  all 
about  the  transaction  ?  Who  will  believe  that  he 
did  not  know  how  the  negroes  came  by  their 
wounds  ?  Who  will  believe  that  he  did  not  know 
they  received  them  in  the  fight  at  Parker's  ?  He 
was  silent  because  he  sympathized  with  the  mur- 
derers, if  not  in  the  murder,  at  least  in  the  vio-  j  out  speaking 
lation  and  obstruction  of  the  laws.    As  a  good  '  **»-+  th*™  eh 


upon  the  dead,  should  have  been  found  by  the 
Coroner's  inquest?  Why  was  it,  that  after 
dressing  the  wounds  of  negroes  who  had  been 
engaged  in  the  fight,  Dr.  Cain  made  no  disclo- 
sure ?  A  murder  had  been  committed  ;  and  a 
good  citizen  would  have  been  anxious  to  bring 
the  guilty  parties  to  justice  ;  but  this  man  did 
not  ask  when,  where,  or  how  these  negroes' 
wounds  had  been  received !  Why  did  he  not  ? 
Because  all  had  been  arranged  beforehand.  This 
checked  the-  natural  curiosity  of  the  worthy 
doctor,  and  induced  him  to  do  his  work  with 
closed  mouth  and  ears.  This  too  is  the  reason 
why  Scarlett  and  Lewis  passed  each  other  with- 
it  had  been  agreed  on  beforehand 
that  there  should  be  no  disclosures.    If  it  were 


citizen,  he  ought  to  have  communicated  the 
knowledge  he  possessed  in  relation  to  some  of  the 
perpetrators  of  the  crime,  in  order  that  both  they 
and  their  accomplices  might  be  brought  to  jus- 
tice. 

But  to  show  further  the  state  of  feeling  in  the 
neighborhood,  you  need  but  look  at  the  Coroner's 
inquest,  held  upon  the  body  of  Edward  Gorsuch. 
It  shows,  that  death  did  not  arrest  the  feelings  of 
the  men  concerned  in  it.  It  was  not  enough, 
that  he  should  be  murdered,  whilst  in  the  lawful 
pursuit  of  his  fugitives ;  but  it  seems  to  have 
been  considered  necessary  for  some  reason,  per- 
haps in  justification  of  his  murderers,  that  his 
memory  should  be  aspersed  and  villified.  If 
there  was  no  other  evidence  of  the  spirit  pre- 
vailing in  the  neighborhood  of  Christiana  than 
that  furnished  by  this  Coroner's  inquest,  it 
would  of  itself  be  sufficient  to  prove  that  the 
bloody  deed  had  more  sympathizers  than  de- 
nouncers ;  more  who  were  ready  to  excuse,  than 
were  ready  either  to  do  justice  to  the  dead  or 
the  living.  The  inquisition  sets  out  with  a  lie, 
a  shameless,  inexcusable  lie.  It  states  in  sub- 
stance, that  Mr.  Gorsuch  came  to  his  death  by  a 
riotous  attack  on  a  family  of  colored  persons. 
Who  testified  to  this  fact  ?  On  whose  evidence 
vas  this  wicked  libel,  on  the  memory  of  Edward 
lorsuch,  inserted  in  the  finding  of  the  inquest  ? 
here  was  no  such  evidence ;  and  yet  twelve 
en,  denominated  "good  and  lawful  men," 
vthout  the  warrant  of  evidence,  in  order  to  ex- 
Qe  those  with  whom  they  sympathized,  in- 
s^ed  it. 

?  it  wonderful,  in  such  a  state  of  feeling, 
leHng  men  to  disregard  their  oaths  as  well  as 
all'ie  commonest  proprieties,  that  it  should  be 
difi\ilt  to  find  direct  evidence  of  a  previous  con- 
spiiy  ?  But  truth  almost  always  vindicates 
itsel  aud  here,  in  the  very  effort  to  conceal  it, 
it  bi^ts  forth  on  all  sides,  to  put  to  shame  and 
hrin^to  punishment  the  perpetrators  of  this 


otherwise,  do  you  believe,  gentlemen  of  the  jury, 
that  after  such  a  battle  had  been  fought,  in  a 
place  usually  so  secluded,  two  neighbors  would 
have  met,  both  deeply  interested  in  the  result,  and 
not  have  spoken  of  the  transaction  ?  Nobody  will 
believe,  that  these  two  men,  who  had  both  been 
engaged  in  marshaling  the  bands  for  that  very 
contest,  could  have  met  before  the  echoes  of  the 
guns  had  died  away  in  the  hills,  and  not  have 
inquired  which  party  had  won  the  day,  unless 
they  had  previously  agreed  not  to  speak  of  it. 

With  both  of  them  it  was  a  day  of  importance — 
a  great  day — a  day  on  which  they  were  to  make 
an  organized  effort  to  resist  the  laws  of  their 
country,  and  yet  they  spoke  not  to  each  other 
when  the  deeds  of  the  day  were  over,  and  they 
had  met  after  the  victory.  Nobody  will  believe 
this,  unless  it  was  by  previous  concert  their  lips 
were  closed. 

From  the  disposition  manifested  by  these  men, 
you  will  see  how  difficult  a  thing  it  was  to  procure 
testimony,  either  of  the  acts  or  intentions  of  the 
parties  to  this  confederacy  to  resist  the  laws  and 
prevent  their  execution.  The  mouth  of  every 
man  was  closed  by  concert.  But  it  is  always  so. 
Conspiracies  to  commit  treason  are  plotted  in 
secret.  The  conspirators  go  not  into  public 
places,  either  to  contrive  or  mature  their  projects. 
Silence  is  necessary  both  to  their  success  and  se- 
curity ;  and  hence,  silence  is  always  observed  as 
far  as  it  is  possible.  This  constitutes  the  diffi- 
culty in  showing  the  motives  of  men  engaged  in 
conspiracies  of  any  kind.  Their  intentions  are 
confined  to  their  own  bosoms,  and  to  the  bosoms 
of  their  confederates  in  crime.  It  belongs  not  to 
men  to  read  the  heart ;  but  it  belongs  to  them  to 
interpret  actions,  and  to  judge  from  them  the 
intentions.  So  in  this  case,  although  we  have  it 
not  from  the  lips  of  Castner  Hanway,  that  his 
object  in  going  to  Parker's  was  to  prevent  the 
execution  of  the  laws,  and  commit  treason  against 
the  United  States,  his  conduct  and  his  acts  de- 


atrocus  deed.  The  very  fact  that  nobody  ap-  j  clare  his  intentions  as  conclusively  as  language 
pearso  know  any  thing ;  that  every  body  (with  i  could  have  done.  Being  present,  seeing  prepar- 
an  h^rabie  exception  or  two,)  endeavors  to  ;  ations  made  to  overbear  the  authority  of  the  law 
conce&every  thing  ;  that  perjury,  slander  of  the  by  violence;  refusing  to  aid  in  its  execution,  on 
dead,  (thlessness  to  every  duty  of  men  and  j  being  required  to  do  so,  coupled  with  certain 


citizenire  resorted  to,  shows  that  there  was 
conspir; 


declarations  which  casually  dropped  from  him, 
not  only  to  do  the  deed  but  to  shelter  .  furnish  evidence  of  his  intentions  not  to  be  mis- 

30 


234 


TREASON  CASES. 


taken.  It  has  been  contended,  on  the  part  of  the 
defence,  that  it  is  no  part  of  the  duty  of  a  good 
citizen  to  aid  in  capturing  fugitive  slaves,  and 
that  Castner  Hanway  was  justifiable  in  refusing. 
I,  gentlemen,  do  not  so  read  the  law.  In  my 
judgment,  it  is  every  man's  duty  to  yield  obedi- 
ence to  the  law.  By  obeying  the  fugitive  slave 
law,  I  become  responsible  for  none  of  the  evils  of 
slavery.  But  if  1  may  refuse  obedience  to  it  be- 
cause I  happen  to  disapprove  it,  some  one  else 
may  refuse  obedience  to  another  law,  which  he 
professes  to  disapprove;  and  thus  anarchy,  con- 
fusion and  violence  may  be  introduced  in  the  go- 
vernment, under  pretence  that  individuals  are 
conscientiously  opposed  to  the  execution  of  its 
laws.  I  am  utterly,  entirely  and  forever  opposed 
to  the  recognition  of  any  such  monstrous  doc- 
trines— doctrines  at  once  subversive  of  all  law, 
order  and  security.  No,  gentlemen,  such  doc- 
trines I  am  sure  can  never  receive  your  sanction ; 
and  I  take  issue  with  the  co\insel  for  the  prisoner, 
when  they  declare  that  it  is  no  part  of  the  duty 
of  a  good  citizen  to  aid  in  the  execution  of  the 
fugitive  slave  law,  on  being  required  to  do  so. 

[Mr.  Cutler.  These  are  not  the  sentiments 
of  the  defence.  It  has  not  been  conducted  on  the 
principle  that  the  fugitive  slave  law  is  not  bind- 
ing upon  all.] 

Mr.  Cooper  :  I  may  have  been  mistaken  ; 
but  I  thought  it  had  been  contended  by  Mr.  Lewis, 
that  there  was  no  obligation  on  the  part  of 
either  Hanway  or  Lewis,  although  required  to 
do  so,  to  aid  the  officer  in  the  capture  of  Gor- 
such's  slaves.  As  the  gentleman  denies  it,  how- 
ever, I  presume  I  was  mistaken.  Well,  be  it  so. 
It  is  then  admitted,  that  it  was  the  duty  of  Han- 
way to  assist ;  but  he  refused  to  assist.  The 
defence  has  then  passed  from  one  horn  of  the 
dilemma  to  impale  itself  more  completely  on  the 
other. 

But,  gentlemen  of  the  jury,  let  us  now  pro- 
ceed to  inquire,  what  constitutes  treason?  In 
the  outset,  I  had  intended,  as  being  most  natu- 
ral, to  commence  with  the  law  and  end  with  the 
facts ;  but  a  suggestion  from  the  court  induced 
me  to  change  the  order  of  presenting  the  case  to 
you.  The  order,  however,  matters  but  little ; 
and  you  will  be  able  to  comprehend  the  whole 
case,  quite  as  well  in  this  mode  of  presenting 
it,  as  in  the  other,  which  I  had  at  first  proposed. 

As  I  remarked  in  the  beginning  of  the  discus- 
sion, I  have  no  disposition  to  go  back  into  the 
dark  ages  of  the  English  law,  to  grope  among 
its  bloody  and  conflicting  precedents  for  the 
purpose  of  deducing  rules  applicable  to  the  case 
at  the  bar.  In  early  and  barbarous  times,  under 
the  reign  of  arbitrary  Sovereigns,  the  rules  of 
courts  and  the  provisions  of  law,  were  alike  in- 
effectual for  the  protection  of  a  person,  who  had 
incurred  royal  displeasure.  Dependent  upon  the 
Crown  for  their  places,  the  judges,  in  cases  be- 
tween it  and  a  subject,  oftener  perverted  than 
vindicated  justice.  Occasionally,  some  strong, 
just  man  held  the  scales  of  justice  steady,  even 
where  the  king  was  a  party.  This,  however, 
was  a  rare  occurrence ;  and  the  consequence  is 
that  the  administration  of  British  criminal  ju- 


risprudence, especially  in  great  State  cases,  is 
stained  with  the  blood,  both  of  men  and  women, 
who  were  confessedly  innocent  of  the  crimes  im- 
puted to  them.  But  since  the  revolution  of  1688, 
the  practical  principle  regulating  criminal  trials 
has  been  entirely  reversed.  Before  that  period, 
courts  acted  on  the  presumption  that  a  person 
charged  with  a  crime,  was  guilty,  until  his  in- 
nocence was  proved.  Since  then,  the  accused  is 
presumed  innocent  until  his  guilt  is  established 
by  a  verdict  against  him. 

But  it  is  not  only  in  this  respect  that  the  cri- 
minal law  of  England  has  undergone  a  change. 
The  mode  of  procedure  in  the  Criminal  courts, 
has  been  greatly  modified  ;  important  privileges 
have  been  secured  to  the  accused,  that  he  is  no  no 
longer,  as  was  formerly  the  case,  in  nearly  as 
much  danger,  innocent  or  guilty.  Formerly  he 
had  to  make  his  defence  without  the  aid  of  coun- 
sel ;  and  without  the  privilege  of  having  wit- 
nesses, in  his  favor,  examined  on  oath.  Now  he 
is  allowed  counsel,  process  to  bring  forward  his 
witnesses,  and  enjoys  in  all  respects  the  same 
rights  that  are  enjoyed  by  the  Crown.  It  is 
from  this  latter  period,  that  I  shall  draw  such 
English  precedents  as  I  propose  to  use ;  and  I 
shall  avoid  all  those,  referred  to  yesterday  by 
the  learned  gentleman,  (Mr.  Read)  as  having 
been  over-ruled  by  later  decisions.  Indeed,  I 
should  not  resort  to  English  authority  at  all, 
were  it  not  for  the  fact  that  they  shed  light  on 
terms  used  in  defining  treason  by  the  Constitu- 
tion and  the  laws  of  the  United  States.  Many 
of  the  framers  of  our  own  Constitution  were 
lawyers,  who  had  drawn  their  ideas  of  treason 
from  the  British  Statutes,  and  the  works  of  Bri- 
tish elementary  writers  on  the  subject.  One  of 
them,  a  namesake  and  relative  of  the  juror  in 
my  eye,  (Mr.  Wilson)  was  one  of  the  most  emi- 
nent lawyers  of  his  day  ;  and  he  and  other  law- 
yers in  the  convention,  took  a  distinguished  part 
in  framing  the  article  which  defines  treason. 
Under  such  circumstances  it  cannot  be  doubted 
that  the  terms  used  in  the  article  defining  trea- 
son, bear  the  same  signification  in  the  Constitu 
tion,  as  they  do  in  the  British  Statutes  and  Br 
tish  law  books.  This  being  the  case,  we  cs 
hardly  help  but  derive  benefit  from  an  examin- 
tion  of  some  of  their  books  and  precedents. 

Foster's  Crown  Law,  a  book  of  deserved  re*-- 
tion,  defines  treason  by  levying  war  to  consist 
"  any  insurrection  or  rising  which  is  intend 
again  the  person  of  king,  be  it  to  dethron  or 
imprison  him,  or  to  oblige  him  to  alter  the  8a- 
sures  of  his  government."  Foster  furthe de- 
clares, that  "  any  insurrection,  to  throw  own 
all  enclosures,  to  alter  the  established  K  or 
change  religion,"  is  in  construction  of  lavfUgh 
Treason.  This  definition  is  broad  eno,'h  to 
cover  the  offence  committed  at  Christian  pro- 
vided the  United  States  have  proved,  >  they 
contend  they  have  done,  that  the  objec'of  the 
parties  assembled  was  to  obstruct  the  e'cution 
of  the  law  generally — that  is,  to  nullify  Q$  ren- 
der  it  inoperative,  as  far  as  they  had  in  their 
power.  If  resisting,  "  to  alter  tl  estab- 
lished law"  is  treason,  an  attempt,  3r  f°rce, 
to  nullify  and  obstruct  a  law  must  I  treason ; 


UNITED  STATES  V.  HANWAY, 


235 


for  surely  the  attempt  to  nullify  and  obstruct,  is 
as  bad  as  a  rising  to  alter.    Foster,  211. 

In  the  case  of  Lord  George  Gordon,  who  was 
indicted  of  treason,  for  attempting  by  force  to 
procure  the  repeal  of  an  Act  of  Parliament,  com- 
monly known  as  Sir  George  Saville's  Act,  for 
removing  certain  disabilities  imposed  on  the  Ca- 
tholic subjects  of  the  realm,  by  a  Statute  of 
r  William  EEL,  Lord  Mansfield  declares,  -'that  if 
persons  do  assemble  themselves,  and  act  with 
some  force  in  opposition  to  some  law  which  they 
think  inconvenient,  and  hope  thereby  to  get  it 
repealed,  this  is  a  levying  war  and  high  trea- 
son "    And  again,  he  says  : 

"  To  attempt  by  intimidation  or  violence  the 
repeal  of  a  law:  or  prevent  by  force  or  terror 
the  execution  of  a  law,  is  an  act  of  lewing  war." 
21  State  Trials,  643  =  Doug.  500.  This  decision 
of  Lord  Mansfield  is  directly  in  point,  and  fully 
sustains  the  doctrine  contended  for  by  the  pro- 
secution. The  object  of  the  persons  assembled 
at  Parkers  house,  on  the  morning  of  the  11th 
of  September  last,  was  "forcible  opposition  to 
an  Act  of  Congress."  The  Act  of  Congress,  com- 
monly known  as  the  fugitive  slave  law,  author- 
ized the  recapture  of  the  slaves  :  and  made  any 
attempt  to  obstruct  or  hinder  the  master  or  his 
agent  in  endeavoring  to  reclaim  them,  "either 
with  or  without  process,"  a  misdemeanor,  pun- 
ishable by  fine  and  imprisonment.  Minoths'  U.  S. 
Statutes  at  large,  1849-50,  page  464.  Sect.  7. 
That  the  object  in  this  case,  was  "  to  prevent  by 
force  the  execution  of  a  law"'  of  the  U.  States, 
cannot  be  doubted.  For  one  hundred,  to  one 
hundred  and  fifty  negroes,  armed  with  guns, 
scythes,  swords,  corn  cutters,  clubs,  &c,  came 
Together  on  the  morning  referred  to,  attacked 
the  officer,  killed  the  master  who  accompanied 
him,  and  wounded  and  dispersed  the  rest  of  his 
party.  The  violence  was  real,  open,  palpable, 
and  attended  with  bloodshed.  But  actual  vio- 
lence is  not  necessary.  Being  in  force  and  pre- 
venting by  intimidation  the  execution  cf  a  law. 
is  treason  according  to  Lord  Mansfield.  But 
the  force  of  this  authority  has  been  attempted  to 
be  shaken  by  the  learned  and  able  counsel,  (Mr. 
Cuylerj  who  opened  the  case  on  part  of  the 
defence.  He  thinks,  that  smarting  under  the 
loss  of  his  fine  mansion,  destroyed  by  the  mob, 
Lord  George  Gordon  was  alleged  to  have  led, 
that  Lord  Mansfield  strained  the  law  in  order  to 
accomplish  his  conviction.  Lord  Mansfield, 
prostituting  his  high  place,  wounding  his  con- 
science, and  sullying  forever  the  brightness  of 
his  immortal  fame,  through  a  pitiful  sentiment 
of  selfish  venation  !  What  a  conception  of  the 
character  of  one  of  England's  most  renowned 
and  upright  judges !  No,  gentlemen  ;  if  such  a 
circumstance  as  that  adverted  to  by  the  learned 
counsel  could  have  had  any  effect  on  such  a  man 
as  Lord  Mansfield,  it  would  have  been  a  con- 
trary one.  If  the  thought  of  an  incidental  per- 
sonal injury  had  ever  entered  his  mind,  in  con- 
nection with  the  decision  of  the  case,  it  would 
have  induced  him  to  incline  the  scales  of  jus- 
tice, if  he  inclined  them  at  all,  in  favor  of  the 
accused.  Enlightened  and  generous  minds,  dis- 
trustful of  the  influence  of  resentment  or  preju- 


dice, always  lean,  when  they  lean  at  all.  in  the 
direction  opposite  to  it.  But  Chief  Justice 
Marshal  lays  down  the  law  in  the  same  way  in 
the  case  of  the  United  States  vs.  Aaron  Burr. 

But  it  is  not  necessary  to  insist  on  English 
precedent,  or  pursue  them  further  ;  and  I  have 
adverted  to  them  merely  to  show  that  they  are 
in  harmony  with  decisions  in  our  ovrn  country. 
In  the  earlier  part  of  our  political  history,  and 
before  the  workings  of  our  institutions  were 
well  understood  by  the  people,  or  their  inherent 
strength  and  force  developed,  several  attempts 
were  made  to  obstruct  the  execution  of  obnox- 
ious laws  by  force.  The  laws  which  provoked 
the  greatest  amount  of  popular  excitement  and 
hostility,  were  the  Excise  laws,  and  the  laws 
taxing  houses,  &c.  Opposition  to  the  first  gave 
rise  to  the  '■  Whiskey  Insurrection  ;"  opposition 
to  the  second,  to  what  is  called  the  "Northamp- 
ton Insurrection."  For  participation  in  the  for- 
mer, Vigol,  Mitchell  and  others,  were  brought  to 
trial  and  convicted  of  treason.  For  heading  the 
latter.  John  Fries  was  tried  and  found  guilty. 

In  VigoPs  case,  Wharton's  State  Trials,  175. 
Judge  Patterson  declares,  "that  an  attempt  by 
force  to  suppress  the  office  of  excise,  is  high 
treason."  In  Mitchell's  case,  ib.  182,  the  same 
judge  declares  that  "to  attempt  to  suppress  the 
excise  offices  and  prevent  the  execution  of  an 
Act  of  Congress,  by  force  and  intimidation,  is 
high  treason  by  levying  war." 

Here  is  the  very  principle  for  which  the  pro- 
secution contends.  And  it  is  the  same  asserted 
in  the  trial  of  Lord  George  Gordon  by  Lord  Mans- 
field. The  object  of  the  negroes  and  their  white 
confederates  in  this  case,  was  to  prevent  by  force 
the  execution  of  the  fugitive  slave  law  ;  and  their 
object  was  successfully  accomplished  by  the  mur- 
der of  Edward  Gorsuch  and  the  putting  to  flight 
of  the  officer  charged  with  the  execution  of  the 
process. 

Judge  Iredell,  a  man  of  great  learning  and  most 
amiable  character,  in  charging  the  Grand  Jury  in 
the  case  of  the  Northampton  insurgents,  says,  ••  if 
the  intention  of  the  insurgents  was  to  prevent  by 
force  of  arms  the  execution  of  any  act  of  Congress 
altogether,  any  forcible  opposition  calculated  to 
carry  the  intention  into  effect  is  a  levying  of  war." 
Wharton's  St.  Trials,  ISO.  This  is  the  same  doc- 
trine held  by  Judge  Patterson  in  the  cases  of 
Yigol  and  Mitchell.  By  some  it  has  been  sup- 
posed, that  the  law  as  laid  down  in  these  cases  by 
Judge  Patterson  has  been  to  some  extent  modified 
by  Judge  Iredell,  by  introducing  into  his  opinion 
the  word  "  altogether. "  But  the  introduction  of 
this  word,  does  not,  in  my  judgment,  change  in 
the  slightest  degree  the  import  of  the  sentence  in 
which  it  is  used.  The  word  "altogether"  is 
simply  explanatory ;  and  is  intended  merely  to 
exclude  the  conclusion,  that  the  attempt  to  pre- 
vent the  execution  of  an  act  of  Congress  in  a  par- 
ticular case,  in  reference  to  a  particular  individual, 
is  treason.  It  was  introduced  obviously  for  the 
purpose  of  showing,  that  the  intention  of  those 
attempting  to  prevent  the  execution  of  a  law  must 
be  general,  and  not  limited  to  the  infraction  of  it 
in  a  particular  instance,  in  order  to  constitute 
treason.    Judge  Patterson  intended  nothing  more 


236 


TREASON  CASES. 


or  less  than  this ;  and  the  law,  as  he  laid  it  down, 
is  in  perfect  harmony  with  law  as  laid  down  by 
Judge  Iredell,  and  as  understood  by  the  prosecu- 
tion in  this  case.  If  the  object  of  the  prisoner 
and  the  negroes,  in  going  to  Parker's,  was  merely 
the  rescue  of  particular  slaves,  and  not  the  ob- 
struction of  the  law  itself,  induced  by  a  general 
feeling  of  opposition  to  it,  we  do  not  pretend  that 
the  act  was  treason.  But  if  their  opposition  to 
the  law  was  such,  that  it  would  have  carried  them 
elsewhere  as  readily  as  to  Parker's,  and  to  the 
rescue  of  other  slaves  as  readily  as  those  of  Gor- 
such's — if  at  one  time  as  well  as  another,  and  in 
behalf  of  one  slave  as  well  as  another,  they  would 
have  resisted  the  execution  of  the  law,  the  act  was 
treason  by  all  the  authorities,  English  and 
American. 

On  the  trial  of  John  Fries  the  leader  of  the 
Northampton  insurgents,  Judge  Peters  says,  "  it 
is  treason  by  levying  war  againt  the  United  States 
for  persons  who  have  none  but  a  common  interest 
with  their  fellow  citizens,  to  oppose  or  prevent  by 
force,  numbers  or  intimidation  a  public  and  gene- 
ral law  of  the  United  States,  with  intent  to  pre- 
vent its  operation  or  compel  its  repeal.  Force  is 
necessary  to  complete  the  crime ;  but  the  quantum 
of  force  is  immaterial."  Wharton's  St.  Trials,  350. 

The  fugitive  slave  law  is  a  general  and  public 
law  of  the  United  States ;  and  Castner  Hanway 
and  his  associates  had  in  it  but  a  common  interest 
with  their  fellow  citizens ;  and  they  prevented  it. 
operation  by  force,  numbers  and  intimidations 
They  did  more.  In  opposing  it,  they  committed 
murder  and  other  grievous  outrages.  I  need 
hardly  say  to  you,  gentlemen  of  the  jury,  that 
the  actors  in  the  Christiana  tragedy  have  brought 
themselves  within  Judge  Peters'  definition  of 
treason.  They  have  not  only  done  so,  but  they 
have  done  works  of  supererogation,  by  shedding 
blood. 

Fries  having  been  convicted,  a  new  trial  was 
granted,  in  consequence,  if  I  remember  rightly, 
of  some  bias  being  discovered  on  the  part  of  one 
of  the  jurors ;  and  at  the  second  trial,  Judge 
Chase,  one  of  the  ablest  of  our  American  judges, 
presided.  In  his  charge  to  the  jury,  he  lays  down, 
"that  any  insurrection  or  rising  to  resist  or  pre- 
vent by  force  or  violence  the  execution  of  any 
statute  of  the  United  States  for  levying  or  collect- 
ing taxes,  or  for  any  other  object  of  a  general  or 
national  concern,  is  a  levying  war."  The  reason 
(he  proceeds  to  say)  is  that  an  insurrection  or 
rising  to  prevent  by  force  the  execution  of  any 
statute  of  the  United  States,  has  a  direct  tendency 
to  dissolve  all  the  bonds  of  society,  to  destroy  all 
order  and  all  laws,  and  also  all  security  for  the 
lives,  liberties,  and  property  of  the  citizens  of  the 
United  States."    Wharton's  St.  Trials,  634. 

This  is  substantially,  and  to  every  intent  and 
purpose,  the  law  as  laid  down  by  Judges  Iredell 
and  Peters  in  the  same  case.  And  here,  gentle- 
men, allow  me  to  refer  for  a  moment,  to  a  por- 
tion of  the  argument  of  the  learned  and  very  able 
counsel,  (Mr.  Read)  who  preceded  me,  and  on 
which  he  dwelt  with  great  earnestness.  He  con- 
tended, that  by  the  later  English  authorities,  it 
is  necessary,  in  order  to  constitute  the  offence  of 
treason  by  levying  war,  that  there  must  be  an 


insurrection  or  rebellion.  He  also  contended, 
that  in  order  to  constitute  treason  under  the  con- 
stitution and  laws  of  the  United  States,  there 
must  be  insurrection  or  rebellion  ;  and  to  sustain 
his  views  in  this  respect  he  has  quoted  from  the 
Madison  papers,  the  remarks  of  several  members 
of  the  convention,  on  the  article  of  the  Constitu- 
tion relating  to  treason. 

Insurrection  means  nothing  more  than  rising ; 
and  the  terms  insurrection  and  rising  are  used 
indifferently  by  Judge  Chase  in  this  case.  Rising, 
in  the  sense  in  which  it  is  used  by  him,  means 
the  concerted  assembling  together  of  a  number 
of  individuals  for  a  particular  purpose.  The 
assemblage  at  Parker's  was  a  rising,  and  its 
object  was  the  obstruction  of  the  law  by  forcible 
means. 

Rebellion,  in  its  common  acceptation,  is  waging 
war  against  legitimate  authority.  And  I  have 
shown  by  the  authorities  which  I  have  produced, 
that  the  attempt  by  force  to  prevent  the  execu- 
tion of  an  act  of  Congress,  is  levying  war.  Levy- 
ing war  and  waging  war,  both  mean  making  war. 
You  see,  therefore,  gentlemen  of  the  jury,  that 
the  English  cases  which  declare,  that  to  constitute 
treason,  there  must  be  an  iusurrection  or  rebel- 
lion is  nothing  more  than  repeating  in  other 
terms,  what  we  admit  the  law  to  be,  and  what, 
in  this  country,  it  has  always  been  held  to  be. 

In  the  United  States  v.  Bollman  and  Swartout 
ex  parte  Chief  Justice  Marshall  says,  "  if  a  body 
of  men  be  actually  assembled  for  the  purpose  of 
effecting  by  force  a  treasonable  purpose,  all  those 
who  perform  any  part,  however  minute,  or  how- 
ever remote  from  the  scene  of  action,  and  who 
are  actually  leagued  in  the  general  conspiracy, 
are  to  be  considered  traitors."  4  Cranch.  126. 
In  this  case  Judge  Marshall  quotes  Judge  Chase's 
opinion  in  Fries'  case,  with  approbation. 

This  case,  you  will  see,  is  to  the  same  effect  as 
the  other  which  I  have  brought  to  your  notice. 
It  is  couched  in  more  general  terms,  and  states 
only  general  propositions.  But  it  may  aid  you 
in  coming  to  a  conclusion  in  one  respect.  It 
shows  clearly,  that  "all  those  who  perform  any 
part,  however  minute,  or  however  remote  from 
the  scene  of  action,"  provided  their  intention  be 
to  forward  the  object  of  conspiracy,  they  are  to 
be  considered  traitors.  It  is  not  necessary  that 
Castner  Hanway  should  have  fired  a  gun  or 
struck  a  blow.  It  was  enough  that  he  was  pre- 
sent, consenting  to  what  Avas  done  by  others. 

Judge  Story,  in  charging  the  grand  jury  at 
Newport,  Rhode  Island,  on  the  15th  of  June, 
1842,  after  stating  what  was  necessary  to  consti- 
tute treason  under  certain  circumstances,  adds, 
"  that  it  will' be  equally  treason,  if  the  intention 
is  by  force  to  prevent  the  execution  of  any  one 
or  more  general  and  public  laws  of  the  govern- 
ment, or  to  resist  the  exercise  of  any  legitimate 
authority  of  the  government  in  its  sovereign  ca- 
pacity. The  definition  of  Judge  Story  as  to  what 
constitutes  treason,  given  as  late  as  1842,  is  quite 
as  broad  as  that  of  any  of  the  judges  who  have 
preceded  him.  To  resist  the  exercise  of  any  le- 
gitimate authority  of  the  government  in  its  sove- 
reign capacity,  is  declared  to  be  treason.  Is  not 
the  execution  of  process  by  one  of  its  officers  an 


UNITED  STATES  V.  HANWAT. 


237 


exercise  of  its  legitimate  authority?  Was  not 
the  conduct  at  Parker's  a  resistance  of  the  exer- 
cise of  its  legitimate  authority  ?  If  it  was,  those 
who  were  guilty  of  the  resistance  were,  according 
to  Judge  Story,  guilty  of  treason. 

In  charging  the  grand  jury  of  the  city  and 
county  of  Philadelphia,  in  relation  to  the  Ken- 
sington riots,  Judge  King  says,  "  that  where  the 
object  of  the  riotous  assembly  is  to  prevent  by 
by  force  or  violence  the  execution  of  any  statute 
of  this  Commonwealth,  or  by  force  or  violence  to 
coerce  its  repeal  by  the  legitimate  authority,  or 
to  deprive  any  class  of  the  community  of  the  pro- 
tection afforded  by  law,  as  burning  down  all 
churches  or  meeting  houses  of  a  particular  sect, 
&e.  ;  and  the  rioters  proceed  to  execute  by  force 
their  predetermined  objects  and  intents,  they  are 
guilty  of  high  treason  in  levying  war  against  the 
Commonwealth.''    Whart.  Crim.  Law,  586. 

Here  again  you  will  see  that  the  same  doctrine 
is  held — "that  where  the  object  of  a  riotous  as- 
sembly is  to  prevent  by  force  or  violence  the  exe- 
cution of  a  statute  of  the  Commonwealth,  it  is 
high  treason  by  levying  war."  Thus,  in  England, 
in  the  United  States,  and  in  the  Commonwealth 
of  Pennsylvania,  it  is  held  to  be  "levying  of 
war"  to  attempt  by  force  to  prevent  the  execu- 
tion of  a  statute  of  a  public  character  and  general 
concern.  In  all  these  different  courts,  and  by 
judges  of  the  greatest  eminence  for  learning,  mo- 
deration and  purity  of  character,  have  the  same 
words  received  the  same  construction.  It  is 
true,  that  on  the  other  side,  one  of  the  counsel 
holds  the  opinion  that  it  is  something  worse  than 
absurd  to  call  the  act  of  three  non-resisting  qua- 
kers,  and  some  eight  and  thirty  penniless,  mise- 
rable negroes,  a  levying  war  against  the  United 
States.  Non-resistents  although  they  were,  and 
miserable  as  were  their  associates,  it  should  be 
remembered  that  Edward  Gorsuch  came  to  his 
death  at  their  hands,  and  that  by  them  the  laws 
of  the  land  were  violated  and  trampled  under  foot. 

His  Honor  Judge  Kane,  in  charging  the  grand 
jury  which  found  the  bill  on  which  the  prisoner 
is  now  being  tried,  has  laid  down  the  law  as 
clearly  and  concisely  as  any  of  his  predecessors ; 
and  this  he  has  done  in  view  of  all  the  lights  fur- 
nished by  modern  British  and  American  juris- 
prudence. The  law,  as  stated  in  this  charge,  has 
been  received  by  the  Bar  of  the  country,  as  far 
as  it  has  given  expression  to  its  opinion,  with 
entire  approbation.  After  adverting  to  certain 
facts,  Judge  Kane  proceeds  : — 

"  If  the  circumstances  to  which  I  have  adver- 
ted have  in  fact  taken  place,  thay  involve  the 
highest  crime  known  to  our  laws.  Treason  against 
the  United  States  is  defined  by  the  Constitution, 
Art.  3,  Sec.  3,  CI.  1,  to  consist  in  "  levying  war 
against  them,  or  in  adhering  to  their  enemies, 
giving  them  aid  and  comfort."  This  definition  is 
borrowed  from  the  ancient  law  of  England,  Stat. 
25  Edw.  3,  stat.  5,  chap.  2,  and  its  terms  must 
be  understood  of  course  in  the  sense  which  they 
bore  in  chat  law,  and  which  obtained  here  when 
the  Constitution  was  adopted.  The  expression 
"  levying  war,"  so  regarded,  embraces  not  merely 
the  act  of  formal  or  declared  war,  but  any  com- 
bination forcibly  to  prevent  or  oppose  the  execu- 


tion or  enforcement  of  a  provision  of  the  Consti- 
tuion,  or  of  a  public  statute,  if  accompanied  or 
followed  by  an  act  of  forcible  opposition,  in  pur- 
suance of  such  combination.  This,  in  substance, 
has  been  the  interpretation  given  to  these  words 
by  the  English  judges,  and  it  has  been  uniformly 
and  fully  recognized  and  adopted  in  the  courts  ot 
the  United  States.  (See  Eoster,  Hale,  and  Haw- 
kins, and  the  opinions  of  Iredell,  Patterson, 
Chase,  Marshall,  and  Washington,  J.  J.,  of  the 
Supreme  Court,  and  of  Peters,  D.  J.  in  United 
States  v.  Tigol,  United  States  v.  Mitchell,  United 
States  v.  Fries,  United  States  v.  Bollman  and 
Swartwout,  and  United  States  v.  Burr.) 

"  The  definition,  as  you  will  observe,  includes 
two  particulars,  both  of  them  indispensable  ele- 
ments of  the  offence.  There  must  have  been  a 
combination  or  conspiring  together  to  oppose  the 
law  by  force,  and  some  actual  force  must  have 
been  exerted,  or  the  crime  of  treason  is  not  con- 
summated. 

"  The  highest,  or  at  least  the  direct  proof  of  the 
combining  may  be  found  in  the  declared  purposes 
of  the  individual  party  before  the  actual  out- 
break ;  or  it  may  be  derived  from  the  proceedings 
of  meetings,  in  which  he  took  part  openly,  or 
which  he  either  prompted  or  made  effective  by 
his  countenance  or  sanction, — commending,  coun- 
selling and  instigating  forcible  resistance  to  the 
law.  I  speak,  of  course,  of  a  conspiring  to  resist 
a  law,  not  the  more  limited  purpose  to  violate  it, 
or  to  prevent  its  application  and  enforcement  in  a 
particular  case,  or  against  a  particular  indi- 
vidual. The  combination  must  be  directed  against 
the  law  itself. 

•'But  such  direct  proof  of  this  element  of  the 
offence  is  not  legally  necessary  to  establish  its 
existence.  The  concert  of  purpose  may  be  de- 
duced from  the  concerted  action  itself,  or  it  may 
be  inferred  from  fa-cts  occurring  at  the  time,  or 
afterwards,  as  well  as  before. 

'•Besides  this,  there  must  be  some  act  of  vio- 
lence, as  the  result  or  consequence  of  the  com- 
bining. But  here  again,  it  is  not  necessary  to 
prove  that  the  individual  accused  was  a  direct, 
personal  actor  in  the  violence.  If  he  was  pre- 
sent, directing,  aiding,  abetting,  counselling,  or 
countenancing  it,  he  is  in  law  guilty  of  the  for- 
cible act.  Jsor  is  even  his  personal  presence  in- 
dispensable. Though  he  be  absent  at  the  time 
of  its  actual  perpetration,  yet  if  he  directed  the 
act,  devised  or  knowingly  furnished  the  means 
for  carrying  it  into  effect,  instigated  others  to 
perform  it,  he  shares  their  guilt.  In  treason 
there  are  no  accessories. 

"There  has  been,  I  fear,  an  erroneous  im- 
pression on  this  subject  among  a  portion  of  our 
people.  If  it  has  been  thought  safe  to  counsel 
and  instigate  others  to  acts  of  forcible  oppugna- 
tion  to  the  provisions  of  a  statute, — to  inflame 
the  minds  of  the  ignorant  by  appeals  to  passions, 
and  denunciations  of  the  law  as  oppressive,  un- 
just, revolting  to  the  conscience,  and  not  binding 
on  the  actions  of  men, — to  represent  the  consti- 
tution of  the  land  as  a  compact  of  iniquity,  which 
it  were  meritorious  to  violate  or  subvert, — the 
mistake  has  been  a  grievous  one  ;  and  they  who 
have  fallen  into  it  may  rejoice,  if  peradventure 


238 


TREASON  CASES. 


their  appeals  and  their  counsels  have  been  hither- 
to without  effect.  The  supremacy  of  the  consti- 
tution, in  all  its  provisions,  is  at  the  very  basis 
of  our  existence  as  a  nation.  He,  whose  con- 
science, or  whose  theories  of  political  or  indivi- 
dual right  forbid  him  to  support  and  maintain  it 
in  its  fullest  integrity,  may  relieve  himself  from 
the  duties  of  citizenship  by  divesting  himself  of 
its  rights.  But  while  he  remains  within  our 
borders,  he  is  to  remember,  that  successfully  to 
instigate  treason  is  to  commit  it." 

Bearing  in  mind  the  doctrines  of  this  charge, 
I  do  not  think  gentlemen,  you  can  find  much 
difficulty  in  classing  this  offence.  You  will  see 
it  distinctly  lays  down,  that  the  term  "levying 
war,"  embraces  not  only  the  act  of  formal  or 
declared  war,  but  likewise  any  combination  for- 
cibly to  prevent  the  execution  of  a  provision  of 
the  Constitution,  or  of  a  public  statute,  provided 
such  combination  be  accompanied  or  followed  by 
an  act  of  forcible  resistance.  That  the  definition 
here  given,  embraces  just  such  an  outrage  as  that 
committed  at  Parker's  house  on  the  morning  of 
the  11th  September,  no  one  it  seems  to  me  can 
doubt.  The  object  of  that  outrage  was  to  pre- 
vent the  execution  of  the  law,  providing  for  the 
rendition  of  fugitive  slaves  ;  and  it  was  not  only 
a  forcible  and  violent,  but  it  was  likewise  a 
cruel,  wicked,  and  bloody  one. 

The  case  of  the  United  States  vs.  Hoxie,  has 
been  relied  on  by  the  defence,  as  asserting  a 
doctrine,  different  from  that  of  the  cases  to 
which  I  have  called  your  attention ;  and  it  is 
insisted  that  the  doctrine  of  this  case  is  the  true 
one.  I  shall  not  attempt  to  controvert  the 
doctrine  of  the  court  in  the  case  of  Hoxie.  In 
my  judgment,  if  rightly  understood,  it  is  in  no- 
wise in  conflict  with  the  doctrine  of  the  other 
cases  which  have  been  brought  to  the  attention 
of  the  court  and  jury.  This  was  a  case  arising 
under  the  Embargo  Law.  A  raft  of  timber 
about  to  be  smuggled  into  Canada,  was  seized 
by  a  Collector  of  Customs,  and  stopped  on  its 
passage.  After  words,  anticipating  an  attempt 
to  retake  it,  on  the  part  of  those  to  whom  it  be- 
longed, it  was  placed  by  the  Collector  in  the 
custody  of  a  company  of  militia,  called  out  for 
the  purpose.  The  owners  and  a  number  of 
persons,  (about  sixty)  assembled,  got  possession 
of  it,  and  carried  it  to  Canada.  As  they  were 
removing  it,  they  were  fired  on  by  the  militia, 
and  being  armed,  they  returned  the  fire  ;  but 
no  one  on  either  side  was  hurt.  Now,  it  has 
been  conceded  by  the  prosecution,  from  the 
outset,  that  unless  their  intention  in  committing 
the  act,  be  to  obstruct  and  nullify  the  law  itself, 
the  act  is  not  treasonable.  This,  as  I  have 
stated,  was  an  attempt  to  smuggle  ;  an  attempt 
to  evade,  and  not  to  resist.  I  need  not  tell  you 
that  the  term  smuggling,  both  in  this  country 
and  in  England,  is  a  term  used  to  express  the 
act  of  evading  the  revenue  laws.  Evading  a  law  is 
not  resisting  it.  Nor  does  any  act  of  evasion,  no 
matter  with  what  force  it  may  be  attended, 
amount  to  treason.  In  England,  nothing  scarce- 
ly is  more  common  than  conflicts,  and  sometimes 
bloody  ones,  between  the  smugglers  and  the 
troops.    But  nobody  has  ever  heard  of  a  smug- 


gler being  indicted  for  treason.  On  the  part  ol 
the  smuggler  very  often,  there  is  no  hostility  to 
the  law.  There  is  no  desire  on  their  part  to  have 
it  repealed ;  for  if  repealed,  their  vocation  would 
be  gone.  Nor  does  their  conduct  ever  evince 
any  general  purpose  of  obstructing  the  revenue 
laws.  Their  object,  I  repeat,  is  to  evade,  and 
not  overthrow  the  laws.  Now,  gentlemen,  per- 
mit me  to  ask  what  analogy  there  is  between  this 
case  and  ours  ?  The  purpose  in  Hoxie's  case 
was  to  evade  the  laws  ;  and  though  they  ended 
by  resisting  the  troops,  evasion  and  not  resist- 
ance was  their  object.  In  Hanway's  case,  the 
law  in  process  of  execution,  was  violently  ob- 
structed, the  officer  intimidated,  and  one  of  his 
party  killed  on  the  spot,  and  others  wounded. 
The  object,  if  the  evidence,  as  we  interpret  it,  is 
to  be  believed,  was  not  the  rescue  of  particular 
negroes,  through  special  regard  for  them.  It 
was  hostility  to  the  law,  not  affection  or  regard 
for  the  negroes  ;  for  with  them  the  conspirators 
do  not  appear  to  have  been  unacquainted.  In 
short,  in  this  case,  the  object  of  the  prisoner  and 
his  accomplices,  was  to  prevent  the  execution  of 
the  laws ;  not  through  hostility  to  those  who 
were  seeking  its  aid  ;  not  through  affection  for 
those  against  whom  its  aid  was  invoked ;  but 
because  they  were  opposed  to  the  law  itself,  and 
determined  to  prevent  its  execution. 

I  have  now  done  with  the  examination  of  the 
law  as  it  relates  to  this  case.  It  is  your  business 
to  apply  it ;  and  I  am  sure  you  will  do  it  con- 
scientiously and  fearlessly,  looking  to  no  conse- 
quences, except  in  so  far  as  you  will  be  thereby 
inspired  to  a  firm  and  manly  discharge  of  your 
duty.  A  thousand  extraneous  things  have  been 
introduced  into  the  discussion  on  the  part  of  the 
defence.  An  attempt,  persevered  in  from  the 
very  beginning  of  the  trial,  has  been  made  to 
excite  your  prejudices  againt  the  prosecution.  In 
an  honest  search  for  truth,  the  effort  always  is  to 
strip  the  subject  of  inquiry  of  every  thing  extra- 
neous and  adventitious,  and  to  present  it  naked 
to  the  inquiring  tribunal.  It  is  only  falsehood 
that  needs  a  cloak.  Truth  having  no  deformity 
to  conceal  may  be  exhibited  naked.  Why  is  it 
then,  that  our  learned  friends  have  labored  to 
surround  this  inquiry  with  so  much  that  is  cal- 
culated to  obscure  and  mislead  ?  Why  is  it  that 
the  learned  gentleman  who  preceded  me  (Mr. 
Read)  arrayed  before  you  all  the  evils  which  flow 
from  slavery  ?  Why  introduce  the  local  laws  of 
the  slaveholding  states  ?  Why  tell  you  that  mar- 
riage, the  holiest  relation  of  society,  is  prohibited 
to  the  negro  ;  why  that  the  Bible,  which  contains 
the  precepts  which  teach  us  how  to  live  and  prepare 
us  to  die,  is  forever  closed  against  him ;  why  that  it 
is  a  penal  offence  to  teach  him  to  read  or  write  ; 
why  that  in  South  Carolina  a  man  may  kill  his 
slave  on  the  payment  of  a  sum  of  money  ;  why,  in 
short,  denounce  and  insist  here  that  slavery  is  an 
unmitigated  curse,  without  a  redeeming  feature  ? 
Why  all  this,  and  ten  times  more  that  has  been 
the  subject  of  exciting  criticism  ?  I  will  not  so 
wrong  the  intelligence  of  the  gentlemen  who  con- 
duct the  defence,  as  to  suppose  that  all  this  ex- 
traneous matter  was  introduced  without  aim  or 
purpose.    But  with  what  object  has  it  been  intro 


UNITED  STATES  V.  HANWAY. 


239 


duced  ?  It  relates  to  no  part  of  the  issue  that  is  I 
trying  :  it  illustrates  no  fact  in  the  cause.  For 
what  purpose  then  I  ask  again  has  it  been  intro- 
duced ?  Was  it  to  justify  the  conduct  of  the  con- 
spirators ?  This  it  cannot  do.  The  -wrongs  of  I 
slavery  and  the  sins  of  slaveholders  cannot  au- 
thorize or  justify  Castner  Hanvray  in  committing  j 
treason.  But,  gentlemen,  though  it  relates  to  no 
part  of  the  issue,  though  it  constitutes  no  justifi- 
cation of  the  conduct  of  Castner  Hanvray,  it  may 
nevertheless  serve  the  double  purpose  of'enlisting 
your  prejudices  against  the  prosecution,  and  with- 
drawing your  attention  from  the  many  material 
though  less  exciting  facts  in  the  case.  If  in  the 
multitude  of  subjects  gathered  together  and  cast 
in  confusing  method  upon  the  facts  of  the  case, 
so  that  some  of  them  may  be  obscured  or  for- 
gotten, it  will  be  a  point  gained  on  part  of  the 
defence.  But  should  they  fail  in  this,  they  may 
still  serve  to  arouse  prejudices  without  your  being 
aware  of  it,  which  may  profit  the  prisoner.  But 
the  cause  which  needs  to  be  sustained  is  mystifi- 
cation and  the  enlistment  of  prejudices  cannot 
be  a  just,  nor  even  a  very  hopeful  one  ;  and  that 
this  is  not  a  hopeful  one,  at  least,  is  proved  by  the 
extraordinary  efforts  made  to  confuse  and  preju- 
dice your  minds. 

"When  you  saw  the  counsel  for  the  prisoner,  who 
closed  the  case  in  his  behalf,  ranging  through  the 
wide  fields  of  history,  poetry  and  fiction,  but 
always  managing  to  begin  or  end  with  something 
about  Maryland,  and  the  part  which  she  is  taking 
here  in  relation  to  the  prisoner,  or  which  she  is 
acting  at  home  in  regard  to  the  institution  of 
slavery,  you  no  doubt  wondered,  what  all  this 
could  have  to  do  with  the  offence  of  Castner  Han- 
way  for  which  he  is  on  his  trial.  But,  gentlemen, 
it  was  for  no  idle  purpose,  that  Maryland  has 
been  made  to  occupy  from  first  to  last  so  invidious 
an  attitude:  that  Charles  I.  Cromwell,  and  Jack 
Cade  have  all  been  made  to  play  their  parts  in  the 
trial.  It  was  for  the  twofold  purpose  I  have 
already  stated — to  exasperate  and  call  away  your 
attention  from  the  main  matter  of  inquiry. 

To  defend  slavery  in  the  abstract  is  not  one  of 
our  duties.  It  is  to  maintain  the  law  as  it  exists 
that  we  are  here ;  to  show  that  the  prisoner  has 
violated  it,  and  incurred  its  penalties.  But,  gen- 
tlemen, I  would  be  doing  injustice  to  my  own 
feelings,  if  I  did  not  vindicate  Maryland  against 
the  aspersions  cast  upon  her  conduct  as  exhibited 
in  her  legislation  in  reference  to  her  negro  popu- 
lation. Itisnottrue.  as  it hasbeen  charged,  that 
her  free  colored  population  are  without  the  full 
protection  of  the  laws.  To  kill  a  negro  is  as  much 
murder  as  to  kill  a  white  man :  even  to  chastise 
him  immoderately  without  cause  is  prohibited  by 
law  and  punishable  by  it.  To  kidnap  either  a 
free  negro,  or  one  who  is  a  slave  but  for  a  term 
of  years,  is  an  offence  punishable  by  imprison- 
ment in  the  penitentiary.  And  a  man  who  acts 
with  cruelty  to  his  slaves,  or  who  fails  to  pro- 
vide them  with  sufficient  food  and  clothing,  is 
placed  under  the  ban  of  society  and  punished  by 
its  contempt  as  well  as  by  the  laws.  But,  I 
repeal  that,  neither  my  colleagues  nor  myself,  j 
are  the  defenders  of  slavery ;  though  we  are  not,  1 
we  cannot  permit  without  indignant  denial  and  | 


rebuke,  sweeping  charges  of  injustice  and  cruelty 
to  be  made  against  the  citizens  of  our  sister 
states.  At  whose  doors  the  original  sin  of  slavery 
lies:  whether  slaves  were  first  landed  from 
northern  ships  upon  southern  shores:  orwhether 
Massachusetts  and  South  Carolina  stood  together 
in  the  convention,  protesting  against  the  aboli- 
tion of  the  slave  trade,  because  one  might  find  in 
it  profitable  employment  for  its  shipping,  and  the 
other  valuable  cultivators  of  its  soil,  it  would  be 
bootless  to  discuss.  It  is  enough  for  you  and 
I  to  know  that  we  are  not  responsible  for  its  ex- 
istence or  its  evils  ;  and  that  whether  it  be  right 
or  wrong  we  are  performing  our  duty  in  main- 
taining inviolate  the  compact  of  our  fathers  which 
has  descended  to  us  with  all  its  obligations  and 
all  its  blessings. 

In  this  connection,  gentlemen,  I  cannot  for- 
bear calling  your  attention  to  a  portion  of  the 
Rev.  Mr.  Wadswortlrs  sermon,  preached  in  this 
city  on  Thanksgiving  day  :  and  it  is  as  follows  : 
"  For  passing  by  all  other  causes  of  irritation  as 
just  now  secondary  and  subordinate,  look,  for  a 
moment,  at  the  influence  which  the  Gospel  of 
Christ  would  have  in  this  great  sectional  con- 
troversy about  slavery. 

First,  it  would  say  to  the  Northern  fanatic, 
who  vapors  about  man-stealing,  as  if  there  were 
no  other  evil  under  the  sun  hut  this  one  evil  of 
slavery — it  would  say  to  him,  emulate  the  spirit 
of  your  blessed  Master  and  his  apostles,  who, 
against  this  very  evil  in  their  own  times  brought 
no  railing  accusation  :  but  in  one  instance,  at 
least,  sent  back  a  fugitive  from  the  household  of 
Philemon.  It  would  say,  look  well  to  your  own 
neighborhood,  and  household,  and  hearts,  and 
see  whether  even  greater  evils  do  not  exist  there, 
making  yourselves  pure  ere  ye  denounce  your 
neighbor — working  with  the  beam  in  your  own 
eye,  ere  with  the  mote  in  your  brother's  eye.  It 
would  say  to  each,  to  every  good  man  seeking 
practically  the  dismemberment  of  this  great  na- 
tional confederacy,  out  of  a  pretended  regard 
to  the  personal  and  religious  rights  of  Southern 
bondmen,  '  ye  know  not  what  manner  of  spirit  ye 
are  of.' 

In  treating  Southern  Christian  slave  holders 
with  Christian  courtesy,  and  sending  back  their 
fugitives  wdien  apprehended  among  you.  you 
neither  endorse  the  system  nor  partake  of  its 
evil :  you  are  only  performing  in  good  faith  the 
agreement,  and  redeeming  the  pledges  of  your 
forefathers,  and  leaving  to  each  man  for  himself 
to  answer  for  his  own  acts  at  the  judgment  seat 
of  Jesus.  It  would  tear  away  from  the  man,  as 
the  foulest  cloak  of  hypocrisy,  that  pretence  of 
a  religious  principle  in  this  whole  matter  of  po- 
litical abolitionism. 

Religious  principle  !  Oh  my  God  !  That  re- 
ligious principle,  that  for  the  sake  of  an  abstract 
right,  whose  very  exercise  were  disastrous  to 
the  unprepared  bondmen  who  inherit  it,  would 
tear  this  blest  confederacy  in  pieces,  and  deluge 
these  smiling  plains  in  fraternal  blood,  and 
barter  the  loftiest  freedom  that  the  world  ever 
saw,  for  the  armed  despotism  of  a  great  civil 
warfare !  That  religious  principle  which,  in 
disaster  to  man's  last  great  experiment,  would 


240 


TREASON  CASES. 


fling  the  whole  race  back  into  the  gloom  of  an 
older  barbarism — rearing  out  of  the  ruin  of  these 
free  homes,  the  thrones  of  a  more  adamantine 
despotism — freedom's  beacons  all  extinguished, 
and  the  whole  race  slaves.  That  religious 
principle  through  which,  losing  sight  of  God's 
great  purpose  of  evangelizing  the  nations,  would 
shatter  the  mightiest  wheel  in  the  mechanism 
of  salvation,  and  palsy  the  wing  of  God's  preach- 
ing angel  in  its  flight  through  the  skies. 

Alas — alas  !  Ye  that  count  as  little  this  bond 
of  blessed  brotherhood,  wrought  by  our  father's 
mighty  hands  and  bleeding  hearts — we  tell  you 
sorrowing  and  in  tears,  that  your  pretence  is 
foul  hypocrisy.  Ye  have  reversed  the  first  pre- 
cept of  the  gospel,  for  your  wisdom  is  a  dove's, 
and  your  harmlessness  a  serpent's.  Ye  have  not 
the  first  principle  within  you  either  of  religion 
or  philanthropy,  or  common  human  benevo- 
lence. Your  principle  is  the  principle  of  Judas 
Iscariot,  and  with  the  doom  of  the  traitor  ye 
shall  go  to  your  own  place. 

No,  sir — no  sir.  There  is  no  gospel  in  all  this 
treasonable  fanaticism — for  treason  to  my  coun- 
try is  rebellion  to  my  God. 

But  then,  secondly.  To  the  Southern  slave 
master  would  the  gospel  come  solemnly.  It 
would  tell  him  that  his  bondman  was  yet  alto- 
gether a  man,  made  in  God's  own  image  and  re- 
deemed by  his  blood.  It  would  warn  it  from 
aught  but  Christian  kindness  unto  a  living  soul, 
thus  bought  with  a  price,  and  winged  with  im- 
mortality. If  it  sent  back  the  fugitive  to  his 
hands  again,  it  would,  as  Paul  the  fugitive  to 
Philemon,  to  be  treated  as  a  redeemed  spirit,  as 
a  brother  beloved.  Over  all  the  toil  of  those 
dark-hearted  children  of  affliction,  ft  would  pour 
the  sweet  influences  of  true  Christian  kindness. 
And  instead  of  galling  chains  and  fetters  of  iron, 
the  Christian  servant  would  be  bound  to  his 
Christian  master  by  the  stronger  chains  of  affec- 
tion and  the  mightier  bondage  of  love. 

Ah,  my  brethren,  let  this  blessed  gospel  have 
free  course  in  the  midst  of  us,  and  there  would 
be  no  burning  wrongs  at  the  South  to  kindle 
Christian  indignation ;  and  there  would  be  no 
standing  place  at  the  North  for  a  malignant  fa- 
naticism. New  England's  practicality  and  Ca- 
rolinian chivalry  would  blend  again  into  beauti- 
ful amalgam. 

The  fretted  chord  of  our  great  national  bro- 
therhood would  grow  strong  again  over  the  shorn 
Samson,  and  wedded  tenderly  and  forever  by 
these  bending  heavens  and  these  encircling  seas, 
God's  glorious  stars  would  blaze  out  on  our  bri- 
dals— no  man  thinking  to  put  asunder  what  Je- 
hovah had  joined." 

This  gentlemen,  is  the  true  gospel,  the  gospel 
of  charity  and  goodwill  to  all.  Living  by  such 
precepts,  harmony  and  peace  would  prevail,  and 
heart-burnings  and  dissentions  cease.  But  coun- 
sels of  moderation  and  forbearance,  are,  in  the 
present  state  of  feeling,  too  often  denounced 
as  the  result  of  subservience  to  interest ;  and 
we  shall  probably  hear  these  admonitions  to 
toleration  and  charity,  scouted  as  having  their 
origin  and  object  in  the  propitiation  of  the 


cotton  influence,  which  is  alleged  to  rule  the 
community. 

Now,  gentlemen,  I  am  nearly  done ;  I  have 
addressed  you  at  greater  length  than  was  neces- 
sary, and  I  fear  than  has  been  agreeable,  remem- 
bering the  length  of  time  you  have  been  confined. 
My  able  colleagues,  Messrs.  Brent  and  Ludlow, 
having  passed  over  the  whole  ground  before  me, 
and  having  presented  to  you  both  the  law  and 
the  facts,  in  a  clear  and  perspicuous  manner, 
it  may  have  been  unnecessary  for  me  to  occupy 
so  much  of  your  time.  But  having  once  em- 
barked in  the  discussion,  it  became  necessary 
with  a  view  to  clearness  and  perspicuity,  that  I 
should  re-occupy  the  whole  field  of  evidence  and 
law.  I  have  done  so,  and  I  fear  at  - tiresome 
length  ;  but  let  the  importance  of  the  case,  and 
the  necessity  which  I  felt  of  replying  to  the  argu- 
ments, pressed  upon  you  with  so  much  zeal, 
earnestness  and  force,  by  the  learned  and  elo- 
quent counsel,  (Messrs.  Lewis  and  Read.)  who 
have  argued  the  case  on  the  part  of  the  prisoner, 
be  my  apology.  I  feel  that  the  case  is  an  impor- 
tant one — important  to  the  prisoner,  important 
to  the  States  of  the  Union,  and  the  people  of  the 
Union.  In  the  argument  which  I  have  submitted 
to  you,  I  have  endeavored  to  treat  the  facts,  and 
treat  the  case  with  fairness,  candor  and  sincerity  ; 
and  while  I  have  labored  to  perform  my  duty 
faithfully  to  the  government,  I  have  desired  to 
do  no  injustice  to  the  prisoner.  The  State  of 
Maryland  has  been  charged  with  thirsting  for 
his  blood ;  and  to  excite  your  indignation,  an 
effort  has  been  made  to  induce  you  to  believe 
that  its  counsel  are  not  only  its  willing  instru- 
ments, but  the  prompters  of  its  vindictiveness. 
This  insinuation  I  have  repelled  as  a  libel ;  as 
a  libel  alike  on  my  colleague,  myself,  and  the 
State  which  we  represent. 

Gentlemen  of  the  jury,  I  dislike  to  speak  of 
myself.  It  is  always  painful  to  do  so.  But  I 
am  happy  in  being  able  to  appeal  to  a  number 
of  you,  who  have  known  me  from  the  first  clay  I 
set  my  foot  on  the  soil  of  Pennsylvania,  until  the 
present,  for  my  vindication  against  this  base  in- 
sinuation. I  have  been  much  in  public  life,  and 
like  other  public  men  have  been  the  subject  of 
many  charges,  some  of  them  true,  some  of  them 
false,  but  none  imputing  to  me  malignity,  cru- 
elty, or  a  thirst  for  blood.  I  have  no  enmity 
against  Castner  Hanway.  I  never  saw  him  till 
he  was  arraigned  ;  and  my  only  feeling  in  regard 
to  him,  is  a  feeling  of  compassion.  God  forbid  ! 
that  being  innocent,  a  hair  of  his  head  should 
fall  to  the  ground !  To  be  instrumental  in  con- 
victing an  innocent  man  would  be  to  plant  thorns 
in  my  own  pillow,  "  to  murder  my  own  sleep" — 
to  inflict  a  wound  on  my  own  peace  that  would 
be  incurable  forevermore  !  If  he  be  innocent, 
send  him  in  the  name  of  God  that  "good  deliv- 
erance," which  the  clerk  invoked  in  his  behalf 
when  he  put  himself  for  trial  on  God,  and  his 
country. 

Gentlemen,  I  am  now  done.    My  duties  in 
connection  with  this  cause  are  ended ;  but  the 
I  most  important  part  of  yours  has  yet  to  be  per- 
!  formed.    The  fate  of  Castner  Hanway  is  in  your 
hands.    If  he  be  innocent,  acquit  him.    If  he 


UNITED  STATES  V.  HANWAY. 


241 


be  guilty,  painful  as  may  be  the  duty,  you  must 
convict  him ;  and  in  order  that  you  may  do  jus- 
tice, forget  every  thing  in  the  cause  but  the  evi- 
dence and  the  law;  and  remember  only  your 
responsibility  and  your  duty.  Do  this,  gentle- 
men, as  I  am  sure  you  will,  and  neither  society, 
whose  guardians  you  are,  nor  the  prisoner  whose 
judges  you  are,  nor  your  consciences,  which  are 
your  own  judges,  will  ever  reproach  or  condemn 
you.  And  justice  having  been  done,  let  us  anti- 
cipate that  sectional  animosity  and  discord  will 
disappear,  and  that  the  mutual  heart-burnings 
and  distrust  which  have  prevailed  in  the  coun- 
try will  cease.  Let  us  hope  so,  at  least ;  and  let 
us  hope,  too,  that  the  clouds  which  we  have 
seen  lowering  over  the  horizon  of  the  Union  and 
threatening  its  peace,  were  but  the  shadow  of 
the  wings  of  the  guardian  angel  of  the  republic, 
and  that  when  they  have  been  folded,  the  rays 
of  the  sun  of  peace  will  again  shine  forth  upon 
the  land  to  bless  it. 

Gentlemen,  remember  that  humanity  through- 
out the  world,  that  freedom  wherever  it  has  a 
home  or  hopes  to  find  one,  is  interested  in  every 
thing,  how  remotely  soever  it  may  affect  the 
stability,  or  endanger  the  peace  of  the  American 
Union.  The  eyes  of  the  world  are  upon  the 
constellation,  in  its  banner.  Its  stars  are  the 
beacons  of  liberty.  Let  us  then,  for  our  sakes, 
and  for  the  sake  of  liberty  in  other  lands,  guard 
it  as  the  Ark  of  the  Covenant  was  guarded  of 
old.  Let  no  hand  deface  it.  Let  the  day  never 
come  when  it  shall  be  rent  in  twain  ;  when  one 
cluster  of  its  stars,  separated  from  the  other  and 
beaming  in  different  banners,  shall  be  borne 
over  adverse  and  conflicting  hosts  ;  but  let  it  re- 
main as  it  now  is,  "  the  Flag  of  the  Union," 
still  waving  over  the  heads  of  united  freemen, 
obedient  to  the  same  laws — laws  supported  by 
all,  sustained  by  all,  vindicated  by  all,  in  every 
section  of  the  country. 


CHARGE  OF  THE  COURT. 
Bv  Judge  Grier. 

Gentlemen  of  the  Jury  : 

We  must  commend  the  patient  attention  which 
you  have  thus  far  given  to  this  most  important 
and  interesting  case.  It  has  taken  up  much  of 
your  time  and  caused  you  some  personal  incon- 
venience, but  not  more  perhaps  than  the  import- 
ance of  the  issue,  both  as  respects  the  interests 
of  the  public  and  your  duty  to  the  prisoner  whom 
you  have  in  charge,  has  necessarily  required. 

It  has  been  the  anxious  desire  of  the  Court,  not- 
withstanding the  pressure  of  other  duties,  to  give 
ample  time  and  opportunity  for  the  careful  and 
full  investigation  of  the  facts  and  law,  bearing  on 
the  case — not  only  because  it  is  the  first  of  a 
numerous  list  of  cases  of  the  same  description 
which  involve  the  issue  of  life  and  death  to  the 
parties  immediately  concerned,  but  because  we 
know  that  the  public  eye  is  fixed  upon  us,  and 
demands  at  our  hands  the  unprejudiced  and 


impartial  performance  of  the  solemn  duties  which 
we  have  been  called  to  execute. 

The  prisoner  at  the  bar  has  a  right  to  require 
of  you  that  you  should  not  permit  the  atrocity 
of  the  transaction,  or  your  horror  of  the  offence 
with  which  he  is  charged,  or  your  proper  desire 
to  vindicate  the  insulted  laws  of  the  country, 
to  cause  you  to  forget  your  duties  to  him,  and 
convict  him  without  full  and  satisfactory  proof  ot 
his  guilt. 

The  government  also,  while  it  cannot  desire  the 
sacrifice  of  an  innocent  individual  for  the  purpose 
of  public  example,  has  a  right  to  demand  of  you 
a  firm,  a  fearless,  and  unflinching  performance 
of  your  duty,  and  that  the  verdict  you  shall  render 
shall  be  a  true  verdict  according  to  the  evidence 
which  you  have  heard,  and  the  law  as  explained 
to  you  by  the  Court. 

Before  proceeding  to  notice  more  particularly 
the  questions  of  law  or  fact  arising  in  this  case, 
or  the  defendant's  complicity  in  the  transaction, 
suffer  me  to  advert  to  some  matters,  which  though 
only  historically  known  to  us,  yet  having  passed 
before  our  eyes  as  citizens  of  the  Commonwealth, 
may  have  a  tendency  to  create  in  our  minds  some 
bias  on  this  subject,  but  which  should  not  be  per- 
mitted to  affect  your  verdict,  whatever  your 
private  sentiments  and  feelings  may  happen  to  be. 

Without  intimating  any  opinion  as  to  the  guilt 
or  innocence  of  the  prisoner  at  the  bar,  it  must 
be  admitted  that  the  testimony  in  this  case  has 
clearly  established,  that  a  most  horrible  outrage 
upon  the  lawrs  of  the  country  has  been  committed. 

A  citizen  of  a  neighboring  State,  while  in  the  ex- 
ercise of  his  undoubted  rights,  guaranteed  to  him 
by  the  Constitution  and  laws  of  the  United  States, 
has  been  foully  murdered  by  an  armed  mob  of 
negroes.  Others  have  been  shot  down,  beaten, 
wounded,  and  have,  with  difficulty,  escaped  with 
their  lives.  An  officer  of  the  law,  in  the  execution 
of  his  duty,  has  been  openly  repelled  by  force 
and  arms. 

All  this  has  been  done  in  open  day — in  the  face 
of  a  portion  of  the  citizens  of  this  Commonwealth, 
whose  bounden  duty  it  was  as  good  citizens  to 
support  the  execution  of  the  laws — without  any 
opposition  on  their  part — without  any  attempt  at 
interference  to  preserve  the  peace ;  and  who,  if 
they  did  not  directly  encourage  or  participate  in 
the  outrage,  looked  carelessly  and  coldly  on. 
These,  I  say,  are  facts  established  in  this  case 
beyond  contradiction. 

That  it  is  the  duty,  either  of  the  State  of  Penn- 
sylvania or  of  the  United  States,  or  of  both,  to 
bring  to  condisrn  punishment  those  who  have 
committed  this  flagrant  outrage  on  the  peace  and 
dignity  of  both,  cannot  be  doubted. 

It  is  now  more  than  sixty  years  since  the  adop- 
tion of  the  Constitution  of  the  United  States. 
Under  its  benign  influence  we  have  become  a 
great  and  powerful  nation  ;  happy  and  prosper- 
ous at  home,  feared  and  respected  abroad.  And 
why  has  this  confederacy  obtained  such  an  im- 
measurable superiority  over  the  other  republics 
on  this  continent  ?  It  is  because,  here,  all  bow  to 
the  supremacy  of  the  law — because,  here,  we  have 
a  moral,  virtuous  and  a  religious  people,  and  a 
firm,  fearless  and  impartial  administration  of  the 

31 


242 


TREASON  CASES. 


laws — because,  here,  the  minority  uphold  the  con- 
stitution and  laws  imposed  by  the  majority — 
because  we  have  not  here  pronunciamentos,  rebel- 
lions and  civil  wars,  caused  by  the  lust  of  power, 
by  ignorance,  faction  or  fanaticism,  which  in 
other  countries  have  marred  every  attempt  at  free 
government. 

That  the  people  of  the  great  State  of  Pennsylva- 
nia have  a  loyalty,  fidelity,  and  love  to  this  Union 
and  the  Constitution  and  laws  which  have  so 
exalted  us  as  a  nation,  cannot  be  doubted;  and 
yet  I  grieve  to  admit,  that  the  only  trials  and 
convictions  on  record  for  armed  and  treasonable 
resistance  to  the  laws  of  the  United  States  since 
the  adoption  of  the  Constitution  have  their  venue 
laid  in  Pennsylvania 

But  these  were  more  than  fifty  years  ago,  and 
before  we  had  become  accustomed  to  the  working 
of  a  new  and  untried  experiment  in  self-govern- 
ment, or  anticipated  its  glorious  results.  It  is 
not  our  purpose  to  excuse  or  vindicate  these  early 
outbreaks  of  popular  insubordination,  which  were 
soon  suppressed  by  military  force  and  the  impar- 
tial execution  of  the  laws  by  courts  and  juries 

But  without,  at  present,  expressing  any  opinion 
whether  the  present  outrage  is  to  be  classed  under 
the  legal  category  of  riot,  murder  or  treason,  we 
think  it  due  to  the  reputation  of  the  people  of 
this  Commonwealth,  to  say,  that  (with  the  excep- 
tion of  a  few  individuals  of  perverted  intellect, 
some  small  districts  or  neighborhoods  whose 
moral  atmosphere  has  been  tainted  and  poisoned, 
by  male  and  female  vagrant  lecturers  and  conven- 
tions,) no  party  in  politics,  no  sect  of  religion,- or 
any  respectable  numbers  or  character  can  be 
found  within  our  borders  who  have  viewed  with 
approbation  or  looked  with  any  other  than  feel- 
ings of  abhorrence  upon  this  disgraceful  tragedy. 

It  is  not  in  this  Hall  of  Independence,  that 
meetings  of  infuriated  fanatics  and  unprincipled 
demagogues  have  been  held  to  counsel  a  bloody 
resistance  to  the  laws  of  the  land.  It  is  not  in 
this  city  that  conventions  are  held  denouncing  the 
Constitution,  the  laws,  and  the  Bible.  It  is  not 
here  that  the  pulpit  has  been  desecrated  by  sedi- 
tious exhortations,  teaching  that  theft  is  merito- 
rious, murder  excusable,  and  treason  a  virtue. 

The  guilt  of  this  foul  murder  rests  not  alone 
on  the  deluded  individuals  who  were  its  imme- 
diate perpetrators,  but  the  blood  taints  with  even 
deeper  dye  the  skirts  of  those  who  promulgated 
doctrines  subversive  of  all  morality  and  all  go- 
vernment. 

This  murderous  tragedy  is  but  the  necessary 
development  of  principles  and  the  natural  fruit 
from  seed  sown  by  others  whom  the  arm  of  the 
law  cannot  reach. 

"  In  making  these  remarks,  we  prefer  to  speak 
the  truth  .in  plain  language,  without  seeking  for 
bland  euphuisms  or  flattering  terms  of  respect 
for  the  promulgators  of  principles  which  we  verily 
believe  are  not  only  dangerous  to  the  peace, 
prosperity  and  happiness  of  the  citizens  of  these 
United  States,  and  leading  to  the  dissolution  of 
the  Union,  but  subversive  of  all  human  govern- 
ment. 

I  have  adverted  to  these  matters  which  must 
have  forced  themselves  on  your  minds  and  atten- 


tion before  the  commencement  of  this  trial,  in 
order  to  warn  you  against  suffering  them  to  bias 
your  minds  in  this  case.  This  defendant  must 
stand  or  fall  by  the  evidence  in  the  cause,  and  not 
be  made  the  scape-goat  or  sacrifice  for  the  offences 
of  others,  unless  he  be  proved  to  have  participated 
in  them.  But  if  that  shall  have  been  made  to 
appear  by  the  evidence,  it  will  be  no  excuse  or 
defence  for  him,  that  others  are  equally  guilty 
with  himself.  It  is  due  to  him,  however,  to  say 
that  there  is  no  evidence  before  us  that  the 
prisoner  attended  any  of  these  conventions  got 
up  to  fulminate  curses  against  the  Constitution 
and  laws  of  the  country,  to  libel  its  best  citizens, 
and  to  exhort  to  a  seditious  and  bloody  resistance 
to  the  execution  of  its  laws.  1 

You  will  have  observed  that  the  bill  of  indict- 
ment charges  the  defendant  with  treason  in  re- 
sisting the  execution  of  a  certain  law  of  Congress 
concerning  fugitives  from  labor,  which  has  been 
the  object  of  much  controversy  and  agitation, 
and  on  which  it  may  be  proper  to  make  a  few 
remarks  before  we  proceed  to  the  more  immediate 
merits  of  the  case. 

The  learned  counsel  for  the  prisoner,  having  a 
due  regard  for  the  high  character  which  they  sus- 
tain in  their  profession,  have  not  made  the  objec- 
tion to  this  law  which  has  been  so  clamorously 
urged  by  many  presses  and  agitators,  that  it  is 
unconstitutional.  It  is  true,  some  ecclesiastical 
assemblies  in  the  north,  treating  it,  we  presume, 
as  a  question  of  theology  or  orthodoxy,  have 
ventured  to  anticipate  the  decision  of  the  legal 
tribunals  on  this  subject.  But  as  highly  as  we 
respect  their  opinions  on  all  questions  properly 
within  their  cognizance,  we  cannot  receive  their 
decisions  as  binding  precedents  on  questions 
arising  under  the  Constitution. 

T  be  Constitution  enacts  that  "no  person  held  to 
service  or  labor  in  one  State  under  the  laws 
thereof,  escaping  into  another,  shall,  in  conse- 
quence of  any  law  or  regulation  therein,  be  dis- 
charged from  such  service  or  labor,  but  shall  be 
delivered  up  on  claim  of  the  party  to  whom  such 
service  or  labor  may  be  due."  This  is  the  su- 
preme law  of  the  land,  binding  not  only  the  re- 
spective States  as  such,  but  on  the  conscience  and 
conduct  of  every  individual  citizen  of  the  United 
States.  It  is  well  known  that,  without  this  clause, 
the  assent  of  the  Southern  States  could  never 
have  been  obtained  to  this  compact  of  Union. 
And  if,  contrary  to  good  faith,  it  should  be  prac- 
tically nullified — if  individual  or  State  legislatures 
in  the  North  can  succeed  in  thwarting  and  ob- 
structing the  execution  of  this  article  of  our  con- 
federation and  the  rights  guaranteed  to  the  South 
thereby,  they  have  no  right  to  complain  if  the 
people  of  the  South  should  treat  the  Constitution 
as  virtually  annulled  by  the  consent  of  the  North, 
and  seek  secession  from  any  alliance  with  open 
and  avowed  covenant  breakers. 

Every  compact  must  have  mutuality  ;  it  must 
bind  in  all  its  parts  and  all  its  parties,  or  it  binds 
none.  Those  States  in  the  North  whose  legisla- 
tion has  made  it  a  penal  offence  for  their  judicial 
and  executive  officers  to  lend  their  assistance  in 
the  execution  of  this  clause  of  the  Constitution, 
and  compels  them  to  disregard  their  solemn  oath 


UNITED  STATES  V.  HAXWAY. 


243 


to  support  it.  have  proceeded  as  far,  and  perhaps 
farther,  in  the  path  of  nullification  and  secession 
than  anv  Southern  State  has  vet  done.  I  know 
it  is  attempted  to  justify  such  legislation  by  casting 
the  blame  on  the  Supreme  Court  of  the  United 
States,  and  quoting  certain  dicta  of  some  of  the 
judges  in  the  case  of  the  Commonwealth  v.  Prigg. 
The"  question  before  the  Court  in  that  case,  and 
the  only  question  which  could  be  decided,  was 
ifcis,  and  this  only, — 

"  That  the  master  of  a  fugitive  having  a  right 
under  the  Constitution  to  arrest  his  slave  without 
writ,  and  take  him  away  ;  any  State  legislation 
which  interfered  with,  or  obstructed  that  right, 
and  (as  in  the  case  before  the  Court)  punished 
the  master,  or  his  agent,  as  a  kidnapper,  was 
void."  How  such  a  decision  can  justify  such 
legislation  it  is  not  easy  to  perceive. 

The  Act  of  Congress  of  1793,  whieh  was  first 
made  to  enforce  this  clause  of  the  Constitution, 
was  found  to  be  defective  and  inoperative  ;  and 
chiefly  because  it  provided  no  legal  process  or 
public  officer  to  make  the  arrest  of  the  fugitive 
and  bring  him  before  the  magistrate. 

The  forcible  arrest  and  seizure  of  a  man  with- 
out any  writ  or  semblance  of  legal  authority, 
justly  became  odious,  because  it  was  liable  to  very 
great  abuse.  There  was  nothing  to  distinguish 
the  arrest  of  a  master  from  the  seizure  of  the  vile 
kidnapper  and  man  stealer.  The  Act  of  1850 
remedies  this  evil ;  it  gives  the  master  legal  pro- 
cess and  an  officer  of  the  law  to  make  the  arrest, 
and  moreover  gives  the  party  arrested  the  benefit 
of  a  hearing  and  the  decision  of  a  judicial  officer, 
before  he  can  be  deported.  The  free  colored 
man  who  was  before  liable  to  capture  by  kidnap- 
pers, is  better  protected  by  this  law  than  he  was 
before. 

In  this  feature  alone  is  there  any  characteristic 
difference  between  this  Act  and  the  Act  of  1793, 
to  which  it  is  a  supplement — no  objection  had 
ever  been  urged  to  that  Act.  that  it  was  unconsti- 
tutional, because  it  did  not  give  the  alleged  fugi- 
tive a  jury  trial.  In  no  cases  of  extradition 
either  of  fugitives  from  justice  or  from  labor, 
where  the  only  question  to  be  decided  is  the 
identity  of  the  person  whose  reclamation  is  sought, 
had  it  ever  been  heard  that  the  country  or  State 
to  which  he  fled,  was  to  try  the  question  of  his 
guilt  or  innocence,  or  pass  upon  his  rights  arid 
duties  in  the  State  from  which  he  fled.  Arid  yet 
this  newly  discovered  argument  is  the  only  one 
which  has  ever  been  urged,  with  any  pretence 
even  of  plausibility,  by  those  who  make  so  great 
clamor  against  this  Act. 

The  truth  is,  the  shout  of  disapprobation  with 
which  this  Act  has  been  received  by  some,  has 
been  caused,  not  because  it  is  injurious  or  dan- 
gerous to  the  rights  of  freemen  of  color  in  the 
United  States,  or  is  unconstitutional ;  but  be- 
cause it  is  an  Act  which  can  be  executed,  and  the 
constitutional  rights  of  the  master  in  some  mea- 
sure preserved.  The  real  objection  with  these 
persons  is  to  the  Constitution  itself,  which  is  sup- 
posed to  be  void  in  this  particular  from  the  effect 
of  some  "higher  law,"  whose  potential  influence 
can  equally  annul  all  human  and  all  divine  law. 

It  is  true  that  the  number  of  persons  whose 


1  consciences  affect  to  be  governed  by  such  a  law, 

I  is  very  small.  But  there  is  a  much  larger  num- 
ber who  take  up  opinions  on  trust  or  by  con- 

I  tagion,  and  have  concluded  this  must  be  a  very 

j  pernicious  and  unjust  enactment,  for  no  other 
reason,  than  because  the  others  shout  their  disap- 

!  probation  with  such  violence  and  vituperation. 

|  And  possibly,  some  might  be  found  who  affect  to 
join  in  the  chorus  with  some  slight  hopes  that 
they  may  be  able  to  ride  into  place  and  power  on 
the  waves  created  by  continual  agitation. 

It  may  not  be  said  of  this  law,  or  perhaps  of 

|  any  other,  that  it  is  perfect,  or  the  best  that  could 
possibly  be  enacted;  or  that  it  is  incapable  of 
amendment.  But  this  may  truly  be  said,  that 
while  there  are  so  many  discordant  opinions  on 
the  subject,  it  is  not  possible  that  a  better  com- 
promise will  be  made  ;  and,  most  probably,  none 
of  us  will  live  to  see  an  Act  on  this  subject  made 
to  please  every  one. 

Let  it  suffice  for  the  present  to  say  to  you, 
gentlemen  of  the  jury,  that  this  law  is  constitu- 
tional; that  the  question  of  its  constitutionality 
is  to  be  settled  by  the  courts,  and  not  by  conven- 
tions either  of  laymen  or  ecclesiastics  ;  that  we 
are  as  much  bound  to  support  this  law  as  any 

I  other  ;  and  that  public  armed  opposition  to  the 

i  execution  of  this  law  is  as  much  treason  as  it 

I  would  be  against  any  other  Act  of  Congress  to  be 
found  in  our  statute  book. 

Let  us  now  proceed  to  examine  more  particu- 
larly the  specific  charges  laid  in  this  bill  of  in- 
dictment, the  evidence  given  to  support  them,  and 

*  the  questions  of  law  involved  in  the  case. 

The  bill  of  indictment  charges  that  the  prisoner 

i  Castner  Hanway,  wickedly  intending  and  devising 
the  peace  and  tranquillity  of  the  United  States  to 
disturb  and  prevent  the  execution  of  the  laws 
thereof,  to  wit,  "  An  Act  respecting  fugitives 
from  justice  and  persons  escaping  from  the  ser- 
vice of  their  masters,"  approved  February  12th, 

I  1793,  and  another  Act.  supplementary  to  the 
same,  passed  on  the  18th  of  September,  1850,  did 
on  the  11th  of  September,  1851,  wickedly  and 
traitorously  intend  to  levy  war  against  the  United 
States. 

It  then  sets  forth  five  several  overt  acts, — 
1st.  That  with  a  large  number  of  persons  armed 
and  arrayed  with  warlike  weapons,  with  purpose 
to  oppose  and  prevent,  by  means  of  intimidation 
and  violence,  the  execution  of  the  said  laws,  he 
did  wickedly  and  traitorously  levy  war  against 
the  United  States. 

2d.  That  in  pursuance  of  said  purpose,  the 
prisoner  and  others  so  armed  and  traitorously  as- 
sembled to  prevent  the  execution  of  said  laws,  did 
with  force  and  arms  traitorously  resist  one  Henry 
H.  Kline,  an  officer  of  the  United  States,  duly 
appointed,  from  executing  lawful  process,  and 
wickedly  and  traitorously  did  prevent  by  force 
j  and  intimidation,  the  execution  of  the  said  laws. 

3d.  The  third  is  the  same  as  the  second,  with 
j  this  addition,  that  they  assaulted  Kline,  and  li- 
j  berated  from  his  custody  persons  arrested  by  him, 
i  who  owed  service  and  labor  to  Edward  Gorsuch 
!  under  the  laws  of  Maryland,  thereby  traitorously 
;  preventing  the  execution  of  said  laws. 

4th.  That  the  prisoner,  with  the  otherSj  did 


244 


TREASON  CASES. 


traitorously  meet,  conspire,  and  consult  to  op- 
pose, resist  and  prevent  by  force  the  execution 
of  said  laws. 

5th.  That  in  pursuance  of  said  traitorous  in- 
tention, he  prepared  divers  books,  letters,  resolu- 
tions, addresses,  &c,  which  he  caused  to  be  dis- 
persed, containing  incitements  and  encourage- 
ments to  fugitives  and  others  to  resist,  oppose 
and  prevent  by  violence  and  intimidation  the 
execution  of  said  laws. 

Whether  the  allegations  of  this  bill  of  indict- 
ment are  supported  by  evidence,  is  the  matter 
which  you  are  sworn  to  try. 

In  assisting  you  to  arrive  at  a  correct  conclusion 
on  these  points,  it  is  not  the  intention  of  the 
Court  to  intimate  an  opinion  on  any  disputed 
fact.  These  are  to  be  decided  by  the  jury  on  their 
own  responsibility  and  the  oath  they  have  re- 
spectively taken  to  give  a  true  verdict. 

But  there  are  certain  facts  in  the  case  which 
have  not  been  disputed  by  the  learned  counsel, 
and  which,  in  speaking  of  this  case,  we  may 
assume  to  have  been  satisfactorily  proved,  as 
they  have  not  been  denied.    They  are  these : — 

That  Edward  Gorsuch,  a  citizen  of  Maryland, 
was  the  owner  of  certain  slaves,  or  persons  held 
to  labor  by  the  laws  of  that  State.  That  these 
slaves  had  escaped  and  fled  into  Pennsylvania, 
and  were  known  to  be  lurking  in  the  neighborhood 
of  the  village  of  Christiana,  in  Sadsbury  town- 
ship, Lancaster  county.  That  Edward  Gorsuch 
came  to  Philadelphia  in  September  last,  and  ob- 
tained warrants,  for  the  arrest  of  these  fugitives, 
from  E.  D.  Ingraham,  Esq.,  a  Commissioner  of 
this  Court,  having  authority  by  law  to  issue  such 
warrants.  That  these  warrants  were  put  into  the 
hands  of  Henry  H.  Kline,  an  officer  duly  author- 
ized to  execute  them 

That  on  the  morning  of  the  11th  of  September, 
about  daylight,  the  officer,  Henry  H.  Kline, 
accompanied  by  Edward  Gorsuch,  his  son  Dicken- 
son Gorsuch,  and  his  nephew  Dr.  Thomas  Pierce, 
his  cousin  J.  M.  Gorsuch,  and  Nicholas  Hutch- 
ins  and  Nathan  Nelson,  citizens  of  Maryland, 
proceeded  to  the  house  of  one  Parker. 

That  a  person  who  was  recognized  as  one  of 
the  fugitives  for  whom  the  warrants  had  been 
issued,  was  seen  to  come  out  of  the  house. 

That  the  fugitive  on  seeing  the  officer  and  his 
company,  immediately  fled  into  the  house  and 
up  stairs,  leaving  the  door  open  behind  him. 
That  Mr.  Gorsuch  pursued  him,  followed  by  the 
officer. 

That  a  number  of  negroes  were  collected  up 
stairs,  armed  in  various  ways  and  determined  to 
resist  the  capture  of  the  fugitives.  That  a  gun 
was  fired  by  one  of  them  at  Mr.  Gorsuch,  and 
others  of  his  assistants  were  struck  with  mis- 
siles thrown  from  the  upper  windows.  That  a 
pistol  was  then  fired  by  the  officer,  not  aimed  at 
the  negroes,  but  rather  to  frighten  them  and 
let  them  know  their  assailants  were  armed. 

That  a  parley  was  then  held  between  the  par- 
ties, and  the  negroes  informed  that  the  officer 
had  legal  process  in  his  hands  for  their  arrest. 
That  the  negroes  demanded  time  for  the  purpose, 
as  was  supposed,  of  offering  terms  of  surrender, 
but  in  reality,  perhaps,  to  gain  time  for  the 


arrival  of  assistance  from  the  neighborhood. 
That  after  some  lapse  of  time,  the  defendant 
arrived  on  the  ground,  and  at  the  same  time,  or 
soon  after,  large  numbers  of  negroes  began  to 
collect  around  with  various  weapons  of  offence, 
such  as  guns,  clubs,  scythes,  and  corn-cutters. 

That  on  the  arrival  of  these  reinforcements, 
the  persons  in  the  house  set  up  a  yell  of  defi- 
ance. That  the  officer  made  known  his  charac- 
ter, and  exhibited  his  writs  to  the  defendant,  and 
another  white  man  who  had  arrived  on  the 
ground,  and  demanded  their  assistance  in  execut- 
ing the  warrants,  which  was  refused.  That  the 
officer  deeming  the  attempt  to  execute  his  writs 
in  the  face  of  a  numerous  armed  and  angry 
mob  of  negroes  hopeless,  made  no  further  at- 
tempt to  do  so,  being  content  to  escape  with  his 
life. 

That  the  mob  of  armed  negroes,  now  amount- 
ing to  near  or  over  one  hundred  persons,  imme- 
diately made  an  attack  upon  the  party  who 
attended  the  officer.  Edward  Gorsuch  was  then 
shot  down,  beaten  with  clubs,  and  murdered  on 
the  spot.  His  son,  who  came  to  his  assistance, 
was  shot  and  wounded,  and  with  difficulty 
escaped  with  his  life. 

Dr.  Pierce,  the  nephew,  was  surrounded  and 
beaten,  but  escaped  with  his  life. 

It  is  in  evidence,  also,  and  not  disputed,  that 
on  the  preceding  evening,  notice  had  been  given 
in  the  neighborhood,  by  a  negro  who  had  fol- 
lowed the  officer  from  Philadelphia,  that  an 
arrest  of  the  fugitives  was  intended,  and  that 
the  concourse  and  riot  of  the  morning,  was  evi- 
dently by  preconcert  and  in  consequence  of  such 
information. 

Without  at  present  further  noticing  the  his- 
tory of  the  transaction,  or  expressing  any  opinion, 
of  the  conduct  of  the  white  people  in  the 
neighborhood,  on  the  occasion,  or  of  the  miser- 
able farce  of  the  jury  of  inquest,  got  up  as  an 
afterpiece  to  this  disgraceful  tragedy,  we  may 
say  that  the  evidence  has  clearly  shown  that  the 
participants  in  this  transaction  are  guilty  of 
riot  and  murder  at  least — whether  the  crime 
amounts  to  treason  or  not  will  be  presently  con- 
sidered. 

Two  questions  present  themselves  for  your 
inquiry — 

1st.  Was  the  defendant,  Castner  Hanway,  a 
participant  in  the  offences  proved  to  have  been 
committed  ?  Did  he  aid,  abet  or  assist  the 
negroes  in  this  transaction,  without  regard  to 
the  grade  or  description  of  the  offence  com- 
mitted ? 

2d.  And  secondly,  if  he  did,  was  the  offence 
treason  against  the  United  States,  as  alleged  in 
this  bill  of  indictment. 

The  first  of  these  questions  is  one  wholly  of 
fact,  and  for  your  decision  alone.  The  last  is  a 
mixed  question  of  law  and  fact.  On  the  law, 
you  have  a  right  to  look  to  the  Court,  for  a 
correct  definition  of  what  constitutes  treason, 
but  whether  the  defendant  has  committed  an 
offence  which  comes  within  that  category,  is,  of 
course,  a  matter  of  fact  for  your  decision. 

When  a  murder  is  committed,  all  who  are 
present,    aiding,    abetting   and  assailing,  are 


UNITED  STATES  V.  HANWAY. 


24r 


equally  guilty  with  him  who  gave  the  fatal 
Btroke. 

An  abettor  of  a  murder  in  order  to  be  held 
liable  as  a  principal  in  the  felony,  must  be  pre- 
sent at  the  transaction ;  if  he  is  absent,  he  may 
be  an  accessory.  But  in  treason  all  are  princi- 
cipals,  and  a  man  may  be  guilty  of  aiding  and 
abetting,  though  not  present. 

"If  one  man  watch  while  another  breaks  into 
a  house  at  night  and  robs  it,  both  are  guilty  of 
burglary." 

"  If  A  comes  and  kills  a  man  and  B  runs 
with  an  intent  to  assist  him,  if  there  should  be 
occasion,  though  in  fact  he  doth  nothing,  yet  he 
is  a  principal,  being  present  as  well  as  A." 

"  If  divers  persons  come  with  one  assent  to  do 
mischief,  as  to  kill,  rob  or  beat,  and  one  doeth 
it,  they  are  all  principals  in  the  felony." 

"If  many  be  present,  and  one  only  gives  the 
stroke,  whereof  the  party  dies,  they  are  all 
principals." 

"  Thus  if  two  fight  a  duel,  and  one  of  them  is 
killed,  the  seconds  who  are  present,  are  both 
guilty  of  murder." 

"If  A  and  B  be  fighting,  and  C,  a  man  of  full 
age  comes  by  chance,  and  is  a  looker-on  only, 
and  assists  neither,  he  is  not  guilty  of  murder  or 
manslaughter,  but  it  is  a  misprision  for  which 
he  shall  -be  fined,  unless  he  uses  means  to  ap- 
prehend the  felon." 

Lastly,  "  if  divers  persons  come  in  one  com- 
pany, to  do  any  unlawful  thing,  as  to  kill,  rob, 
or  beat  a  man,  or  to  commit  a  riot,  or  to  do  any 
other  trespass,  and  one  of  them  in  doing  thereof 
kill  a  man,  this  shall  be  adjudged  murder  in 
them  all  that  are  present  of  that  party,  abetting 
him  and  consenting  to  the  act,  or  ready  to  aid 
him,  although  they  did  but  look  on." 

I  have  given  you  these  examples  from  the 
books,  in  order  that  you  may  form  some  idea  as 
to  the  nature  of  what  the  law  treats  as  criminal, 
aiding,  abetting  and  countenancing,  the  perpe- 
tration of  an  offence. 

In  the  present  case,  the  defendant,  Castner 
Hanway,  was  present  as  proved  by  several  wit- 
nesses and  not  denied.  But  did  he  come  to  aid, 
abet,  countenance  or  encourage  the  rioters  ?  If 
so,  he  was  guilty  of  every  act  committed  by  a.ny 
individual  engaged  in  the  riot — whether  it  amount 
to  felony  or  treason. 

There  is  no  evidence  of  any  previous  connec- 
tion of  the  prisoner  with  this  party,  before  the 
time  the  offence  was  committed — that  he  had 
counselled,  advised  or  exhorted  the  negroes  to 
come  together  with  arms  and  resist  the  officer  of 
the  law  or  murder  his  assistants. 

There  is  no  evidence,  even,  that  the  prisoner 
was  a  member  of  any  of  these  associations  or 
conventions,  which  occasionally  or  annually  in- 
fest the  neighboring  village  of  West  Chester,  for 
the  purpose  of  railing  at  and  reviling  the  Consti- 
tution and  laws  of  the  land,  and  denouncing 
those  who  execute  them  as  no  better  than  a 
Scroggs  and  a  Jeffries — who  stimulate  and  ex- 
hort poor  negroes  to  the  perpetration  of  offen- 
ces, whieh  they  know  must  bring  them  to  the 
penitentiary  or  the  gallows. 

The  fact  of  his  interference,  whether  active  or 


I  passive,  of  his  aiding,  counselling  or  abetting 
the  perpetrators  of  this  offence,  has  been  argued 
from  his  language  and  conduct  during  its  perpe- 
tration in  his  presence. 

His  acts,  his  declarations  and  his  conduct, 
are  fair  subjects  for  your  careful  examination,  in 
order  to  judge  of  his  intentions  or  his  guilty 
complicity  with  those  whose  hands  perpetrated 
the  offence.  If,  as  the  counsel  for  the  United 
States  have  argued,  he  countenanced  or  encour- 
aged, aided  or  abetted  the  offenders  in  the  com- 
mission of  the  offence,  he  is  equally  guilty  with 
them. 

If,  on  the  contrary,  as  is  argued  by  his  coun- 
sel, he  came  there  without  any  knowledge  of 
what  was  about  to  take  place,  and  took  no  part 
by  encouraging,  countenancing,  or  aiding  the 
perpetrators  of  the  offence — if  he  merely  stood 
neutral  through  fear  of  bodily  harm,  or  because 
he  was  conscientiously  scrupulous  about  assist- 
ing to  arrest  a  fugitive  from  labor,  and  there- 
fore merely  refused  to  interfere,  while  he  did 
not  aid  or  encourage  the  offenders,  he  may  not 
have  acted  the  part  of  a  good  citizen;  he  may  be 
liable  to  punishment  for  such  neutrality  by  fine 
and  imprisonment,  but  he  cannot  be  said  to  be 
liable  as  a  principal  in  the  riot,  murder  and 
treason,  committed  by  the  others — and  much 
more  so  if,  as  has  been  argued,  his  only  inter- 
ference was  to  preserve  the  lives  of  the  officer 
and  his  attendants. 

A  man  may  have  such  conscientious  principles 
on  the  subject  of  non-resistance,  as  to  stand  by 
with  indifference  and  neutrality,  when  his  father 
or  friend  is  attacked  by  a  bear  or  a  madman,  and 
in  case  of  his  death  may  not  be  liable  as  an  aider 
or  abettor  in  the  murder  or  manslaughter.  We 
may  wonder  at  his  philosophic  indifference, 
though  we  cannot  admire  the  man. 

So  a  man  who  is  a  mere  spectator  in  a  con- 
test where  a  mob  of  rioters  are  resisting  an  offi- 
cer of  the  law  in  the  execution  of  his  duty,  may 
refuse  assistance,  countenance  or  aid  to  either 
side.  In  so  doing,  he  is  not  acting  the  part  of 
an  honest,  loyal  citizen ;  he  may  be  liable  to  be 
punished  for  a  misdemeanor  for  his  refusal  to 
interfere,  but  such  conduct  will  not  necessarily 
make  him  liable  as  a  principal  in  the  riot  or 
murder  committed. 

But  such  conduct  is  a  fair  subject  for  the 
consideration  of  a  jury  in  connection  with  other 
circumstances  to  show  preconcert  and  guilty 
complicity  with  the  rioters,  murderers  or  trai- 
tors. 

What  inference  the  jury  may  draw  from  the 
evidence  in  this  case  of  the  conduct  of  this  pri- 
soner, is  for  them  to  say,  after  carefully  weighing 
the  arguments  which  have  been  so  ably  urged 
by  the  learned  counsel. 

With  these  remarks  we  submit  this  point  of 
the  case  to  the  jury,  after  reading  to  them,  if 
they  desire  it,  the  testimony  of  the  witnesses 
bearing  more  directly  on  this  question. 

If  you  should  find  that  the  defendant  Castner 
Hanway  did  not  aid,  assist  or  abet  in  the  perpe- 
tration of  the  offence,  you  will  return  a  verdict 
of  not  guilty  without  regard  to  the  grade  of  the 
offence,  whether  riot,  murder,  or  treason. 


246 


TREASON  CASES. 


But  if  you  should  find  that  he  has  so  aided  and 
abetted  so  as  thereby  to  become  a  principal  in  the 
transaction  according  to  the  rules  of  law  which 
we  have  just  stated,  you  will  next  have  to  inquire 
whether  the  offence  as  proved  amounts  to  the 
crime  of  "  Treason  against  the  United  States." 

The  bill  charges  the  defendant  with  "  wickedly 
and  traitorously  intending  to  levy  war  against  the 
United  States  ;"  and  the  jury  must  find  the  act 
or  acts  to  have  been  committed  with  such  inten- 
tion. For  although  the  prisoner  may  have  been 
guilty  of  riot,  robbery,  murder,  or  any  other 
felony,  he  cannot  be  found  guilty  under  this  bill 
of  indictment  unless  you  find  that  he  intended  to 
levy  war  against  the  United  States,  or  that  the  acts 
were  committed  by  himself  and  others  in  pursu- 
ance of  some  conspiracy  or  preconcert  for  that 
purpose  ;  and  this  is  a  question  of  fact  for  the 
decision  of  the  jury. 

But  in  the  decision  of  it,  the  jury  should  re- 
gard the  construction  of  the  Constitution  as  given 
them  by  the  Court  as  to  what  is  the  true  mean- 
ing of  the  words  "levying  war." 

Treason  against  the  United  States  is  defined  by 
the  Constitution  itself.  Congress  has  no  power 
to  enlarge,  restrain,  construe  or  define  the  of- 
fence. Its  construction  is  entrusted  to  the  court 
alone. 

By  this  instrument  it  is  declared  that  "  Trea- 
son against  the  United  States  shall  consist  only 
in  levying  war  against  them,  or  in  adhering  to 
their  enemies,  giving  them  aid  and  comfort.  No 
person  shall  be  convicted  of  treason  unless  on  the 
testimony  of  two  witnesses  to  the  same  overt 
act,  or  on  confession  in  open  court." 

What  constitutes  "levying  war  against  the 
Government,"  is  a  question  which  has  been  the 
subject  of  much  discussion,  whenever  an  indict- 
ment has  been  tried  under  this  article  of  the 
Constitution. 

The  offence  is  described  in  very  few  words, 
and  in  their  application  to  particular  cases  much 
difference  of  opinion  may  be  expected. 

"VVe  derive  our  laws  as  well  as  our  language 
from  England.  As  we  would  apply  to  English 
dictionaries  and  classical  writers,  to  ascertain 
the  proper  meaning  of  a  particular  word,  so  when 
we  would  inquire  after  the  true  definition  of 
certain  legal  phraseology  we  would  naturally 
look  to  the  text  writers  and  judicial  decisions 
which  we  know  that  the  framers  of  our  constitu- 
tions would  regard  as  the  standard  authorities  in 
questions  of  legal  definition. 

Otherwise  the  language  of  the  Constitution  on 
this  subject  might  be  subject  to  any  construction 
which  the  passion  or  caprice  of  a  court  and  jury 
might  choose  to  give  it  in  times  of  public  excite- 
ment. 

At  one  time  the  Constitution  might  be  nullified 
by  a  narrow  construction,  and  at  another  time 
the  life  and  liberty  of  the  citizen  be  sacrified  by 
a  latitudinous  one. 

The  term  "  levying  war,"  says  Chief  Justice 
Marshall,  "  is  not  for  the  first  time  applied  to 
treason  by  the  Constitution  of  the  United  States. 
It  is  a  technical  term.  It  is  used  in  a  very  old 
statute  of  that  country  whose  langage  is  our  lan- 
guage, and  whose  laws  form  the  substratum  of 


our  laws.  It  is  scarcely  conceivable  that  the 
term  was  not  employed  by  the  framers  of  our 
Constitution,  in  the  sense  which  has  been  affixed 
to  it  by  those  from  whom  we  borrowed  it.  So  far 
as  the  meaning  of  any  terms,  particularly  terms 
of  art,  is  completely  ascertained,  those  by  whom 
they  are  employed,  must  be  considered  as  em- 
ploying them  in  their  ascertained  meaning  unless 
the  contrary  is  proved  by  the  context." 

Since  the  adoption  of  the  Constitution  but  few 
cases  of  indictment  for  treason  have  occurred, 
and  most  of  those  not  many  years  afterwards. 
Many  of  the  English  cases,  then  considered  good 
law  and  quoted  by  the  best  text  writers  as  authori- 
ties have  since  been  discredited  if  not  overruled  in 
that  country.  The  better  opinion  there  at  pre- 
sent seems  to  be  that  the  term  "  levying  war" 
should  be  confined  to  insurrections  and  rebellions 
for  the  purpose  of  overturning  the  government 
by  force  and  arms.  Many  of  the  cases  of  con- 
structive treason  quoted  by  Foster,  Hale,  and 
other  writers,  would  perhaps  now  be  treated 
merely  as  aggravated  riots  or  felonies. 

But  for  the  purposes  of  the  present  case,  it  is 
not  necessary  to  pursue  this  subject  further,  or 
to  look  beyond  the  cases  decided  in  our  own 
country.  The  subject  is  one  of  too  serious  im- 
portance to  allow  this  Court  to  indulge  in  specula- 
tions or  wander  from  the  safe  path  of  precedent. 

In  England,  all  insurrections  to  imprison  the 
King,  or  to  force  him  to  change  his  measures,  or 
to  remove  evil  counsellors ;  to  attack  his  troops 
in  opposition  to  his  authority;  to  carry  off  or 
destroy  his  stores  provided  for  defence  of  the 
realm ;  if  done  conjointly  with  and  in  aid  of 
rebels  or  enemies,  and  not  only  for  lucre  or  some 
private  and  malicious  motive ;  to  hold  a  fort  or 
castle  against  the  King  or  his  troops,  if  actual 
force  be  used  in  order  to  keep  possession ;  to  join 
with  rebels  freely  and  voluntarily ;  to  rise 
for  the  purpose  of  throwing  down  by  force,  all 
enclosures  ;  alter  the  law  or  religon,  &c;  to  effect 
innovations  of  a  public  and  general  concern,  by 
an  armed  force  or  for  any  other  purpose  which 
usurps  the  government  in  matters  of  a  public  and 
general  nature.  All  these  acts  have  been  deemed 
"  a  levying  of  war  "  So  also  to  have  insurrec- 
tions to  redress  by  force  national  grievances ;  or 
to  reform  real  or  imaginary  evils  of  a  public 
nature  and  in  whjch  the  insurgents  had  no  private 
or  special  interest,  or  by  intimidation  to  force 
the  repeal  of  a  law. 

But  when  the  object  of  an  insurrection  is  of 
a  local  or  private  nature,  not  having  a  direct  ten- 
dency to  destroy  all  property  and  all  government, 
by  numbers  and  armed  force,  it  will  not  amount 
to  treason. 

In  the  case  of  Bollman  and  Swartout,  in  the 
Supreme  Court  of  the  United  States,  it  is  decided 
"  That  it  is  more  safe  as  well  as  consonant  to  the 
principles  of  our  Constitution,  that  the  crime  of 
treason  should  not  be  extended  by  construction  to 
doubtful  cases." 

"  That  to  constitute  the  specific  offence,  war 
must  be  actually  levied  against  the  United  States ; 
to  conspire  to  levy  and  actually  to  levy  war  are 
distict  offences."  This  case  also  recognized  the 
doctrine  laid  down  by  Judge  Chase  in  Fries'  case, 


UNITED  STATES  V.  HAN  TV  AY. 


247 


that  "  To  complete  the  crime  of  levying  war,  there 
must  be  an  actual  assemblage  of  men  for  the 
purpose." 

'•If  a  body  of  people  conspire  and  meditate  an 
insurrection  to  resist  or  oppose  the  execution  of 
any  statute  of  the  United  States,  by  force,  they 
are  guilty  only  of  a  high  misdemeanor:  but  if 
they  proceed  to  carry  such  intention  into  execu- 
tion by  force,  they  are  guilty  of  the  treason  of 
levying  war,  and  the  quantum  of  the  force  em- 
ployed neither  lessons  nor  increases  the  crime, 
whether  by  one  hundred  or  one  thousand  persons 
is  wholly  immaterial." 

"  A  combination  or  conspiracy  to  levy  war 
against  the  United  States  is  not  treason  unless 
combined  with  an  attempt  to  carry  such  combi- 
nation or  conspiracy  into  execution;  some  actual 
force  or  violence  must  be  used  in  pursuance  of 
such  design  to  levy  war  ;  but  it  is  altogether  im- 
material whether  the  force  used  is  sufficient  to 
effectuate  the  object:  any  force,  connected  with 
the  intention,  will  constitute  the  crime  of  'levy- 
ing waiv  " 

In  Mitchell's  case  it  was  decided  that  to  resist 
or  prevent  by  armed  force,  the  execution  of  a 
particular  statute  of  the  United  States,  is  a  levy- 
ing war  against  the  United  States,  and  conse- 
quently treason  within  the  true  meaning  of  the 
Constitution. 

And  in  Fries'  case,  "that  an  insurrection  or 
rising  of  any  body  of  people  within  the  United 
States,  to  attain  by  force  or  violence  any  object 
of  a  great  public  nature,  or  of  public,  national 
and  general  concern,  is  a  levying  of  war  against 
the  United  States." 

"  That  any  insurrection  to  resist  or  prevent  by 
force  or  violence  the  execution  of  any  statute  of 
the  United  States,  under  any  pretence  of  its  being 
unequal,  burthensome,  oppressive  or  unconstitu- 
tional, is  a  levying  of  war  against  the  United 
States  within  the  Constitution." 

And  again — -'If  the  intention  be,  to  prevent  by 
force  of  arms,  the  execution  of  any  Act  of  Con- 
gress altogether,  any  forcible  opposition  calcu- 
lated to  carry  that  intention  into  effect,  is  levying 
war  against  the  United  States." 

But  the  resistance  of  the  execution  of  a  law  of 
the  United  States  accompanied  with  any  degree 
of  force,  if  for  a  private  purpose,  is  not  treason. 
To  constitute  that  offence  the  object  of  the  resist- 
ance must  be  of  a  public  and  general  nature. 

I  do  not  think  it  necessary  to  quote  further 
from  the  decisions  of  my  predecessors.  It  will 
suffice  to  say  that  the  late  charge  of  my  brother 
Kane  to  the  Grand  Jury,  in  the  Circuit  Court, 
contains  what  I  believe  to  be  a  correct  statement 
of  the  decisions  on  this  subject,  and  that  I  fully 
concur  in  the  doctrines  stated,  and  the  senti- 
ments expressed  therein. 

In  the  application  of  these  principles  of  con- 
struction to  the  case  before  us,  the  jury  will  ob- 
serve, that  the  "levying  of  war,"  against  the 
United  States,  is  not  necessarily  to  be  judged 
of  alone  by  the  number  or  array  of  troops.  But 
there  must  be  a  conspiracy  to  resist  by  force, 
and  an  actual  resistance  by  force  of  arms  or 
intimidation  by  numbers.  The  conspiracy  and 
the  insurrection  connected  with  it  must  be  to 


effect  something  of  a  public  nature,  to  overthrow 
the  government,  or  to  nullify  some  law  of  the 
United  States,  and  totally  to  hinder  its  execu- 
,  tion,  or  compel  its  repeal. 

A  band  of  smugglers  may  be  said  to  set  the 
laws  at  defiance,  and  to  have  conspired  together 
for  that  purpose,  and  to  resist  by  armed  force, 
the  execution  of  the  revenue  laws  ;  they  may 
have  battles  with  the  officers  of  the  revenue,  in 
which  numbers  may  be  slain  on  both  sides,  and 
yet  they  will  not  be  guilty  of  treason,  because  it 
j  is  not  an  insurrection  of  a  public  nature,  but 
merely  for  private  lucre  or  advantage. 

A  whole  neighborhood  of  debtors  may  conspire 
together  to  resist  the  Sheriff  and  his  officers,  in 
executing  process  on  their  property — they  may 
perpetrate  their  resistance  by  force  of  arms — 
may  kill  the  officer  and  his  assistants — and  yet 
they  will  be  liable  only  as  felons,  and  not  as 
traitors.  Their  insurrection  is  of  a  private,  not 
of  a  public  nature  ;  their  object  is  to  hinder  or 
remedy  a  private  not  a  public  grievance. 

A  number  of  fugitive  slaves  may  infest  a 
neighborhood,  and  may  be  encouraged  by  the 
neighbors  in  combining  to  resist  the  capture  of 
any  of  their  number:  they  may  resist  with  force 
and  arms,  their  master  or  the  public  officer,  who 
may  come  to  arrest  them :  they  may  murder  and 
rob  them  ;  they  are  guilty  of  felony  and  liable  to 
punishment,  but  not  as  traitors.  Their  insur- 
rection is  for  a  private  object,  and  connected 
with  no  public  purpose. 

It  is  true  that  constructively  they  maybe  said 
to  resist  the  execution  of  the  fugitive  slave  law, 
but  in  no  other  sense  than  the  smugglers  resist 
the  revenue  laws,  and  the  anti-renters  the 
execution  laws.  Their  insurrection,  their  vio- 
lence, however  great  their  numbers  may  be,  so 
long  as  it  is  merely  to  attain  some  personal  or 
private  end  of  their  own,  cannot  be  called 
'  levying  xcar.  Alexander  the  Great  may  be 
classed  with  robbers  by  moralists,  but  still  the 
political  distinction  will  remain  between  war  and 
robbery.  One  is  public  and  national,  the  other 
private  and  personal. 

Without  desiring  to  invade  the  prerogatives 
of  the  jury  in  judging  the  facts  of  this  case,  the 
Court  feel  bound  to  say,  that  they  do  not  think 
the  transaction  with  which  the  prisoner  is 
charged  with  being  connected,  rises  to  the  dig- 
nity of  treason  or  a  levying  of  war.  Not  because 
the  numbers  or  force  was  insufficient.  But  1st, 
For  want  of  any  proof  of  previous  conspiracy  to 
make  a  general  and  public  resistance  to  any  law  of 
the  United  States. 

21.  There  is  no  evidence  that  any  person  con- 
cerned in  the  transaction  knew  there  were  such 
Acts  of  Congress,  as  those  with  which  they  are 
charged  with  conspiring  to  resist  by  force  and 
arms,  or  had  any  other  intention  than  to  protect 
one  another  from  what  they  termed  kidnappers, 
(by  which  slang  term  they  probably  included 
not  only  actual  kidnappers,  but  all  masters  and 
owners  seeking  to  recapture  their  slaves,  and 
the  officers  and  agents  assisting  therein.) 

The  testimony  of  the  prosecution  shows  that 
notice  had  been  given  that  certain  fugitives  were 
pursued:  the  riot,  insurrection,  tumult,  or  what- 


248 


TREASON  CASES. 


ever  you  may  call  it,  was  but  a  sudden  "concla- 
matio"  or  running  together,  to  prevent  the  cap- 
ture of  certain  of  their  friends  or  companions, 
or  to  rescue  them  if  arrested.  Previous  to  this 
transaction,  so  far  as  we  are  informed,  no  at- 
tempt had  been  made  to  arrest  fugitives  in  the 
neighborhood  under  the  new  act  of  Congress  by 
a  public  officer.  Heretofore  arrests  had  been 
made  not  by  the  owner  in  person,  or  his  agent 
properly  authorized,  or  by  an  officer  of  the  law. 

Individuals  without  any  authority,  but  incited 
by  cupidity,  and  the  hope  of  obtaining  the  re- 
ward offered  for  the  return  of  a  fugitive,  had 
heretofore  undertaken  to  seize  them  by  force 
and  violence,  to  invade  the  sanctity  of  private 
dwellings  at  night,  and  insult  the  feelings  and 
prejudices  of  the  people.  It  is  not  to  be  wonder- 
ed at  that  a  people  subject  to  such  inroads, 
should  consider  odious  the  perpetrators  of  such 
deeds  and  denominate  them  kidnappers — and 
that  the  subjects  of  this  treatment  should  have 
been  encouraged  in  resisting  such  aggressions, 
where  the  rightful  claimant  could  not  be  distin- 
guished from  the  odious  kidnapper,  or  the  fact 
be  ascertained  whether  the  person  seized,  de- 
ported or  stolen  in  this  manner,  was  a  free  man 
or  a  slave. 

But  the  existence  of  such  feelings  is  no  evi- 
dence of  a  determination  or  conspiracy  by  the 
people  to  publicly  resist  any  legislation  of  Con- 
gress, or  levy  war  against  the  United  States.  That 
in  consequence  of  such  excitement,  such  an  out- 
rage should  have  been  committed,  is  deeply  to  be 
deplored.  That  the  persons  engaged  in  it  are 
guilty  of  aggravated  riot  and  murder  cannot  be 
denied.  The  assault  and  murder  were  wantonly 
committed,  after  all  attempt  to  execute  the  pro- 
cess had  been  abandoned. 

This  insult  upon  the  laws  of  the  country  de- 
serves, and  I  presume  will  receive,  condign  pun- 
ishment on  the  persons  who  shall  be  proved  to  be 
the  guilty  participators  in  it.  But  riot  and  mur- 
der are  offences  against  the  State  government.  It 
would  be  a  dangerous  precedent  for  the  Court  and 
jury  in  this  case  to  extend  the  crime  of  treason 
by  construction  to  doubtful  cases. 

The  time  may  come  when  an  elective  judiciary, 
dependent  on  the  will  of  the  majority  (which  is 
here  the  sovereign  power)  may  use  such  a  prece- 
dent to  justify  the  foulest  oppression  and  injustice, 
and  the  tragedies  enacted  by  a  Scroggs  and  a 
Jeffries  be  repeated,  and  again  sully  the  page  of 
history. 

But  I  would  not  be  doing  justice  to  all  parties 
concerned  in  this  prosecution,  if  I  did  not  express 
my  cordial  approbation  of  the  course  pursued  by 


the  authorities  of  the  United  States  and  State  of 
Maryland  on  this  occasion. 

This  is  the  second  instance  in  which  a  citizen 
of  Maryland,  in  the  legitimate  pursuit  of  rights, 
guaranteed  to  him  by  the  Constitution,  has  been 
foully  murdered  on  the  soil  of  Pennsylvania.  As 
might  be  expected,  it  created  a  great  excitement, 
and  a  just  feeling  of  indignation  in  the  breasts  ot 
the  people  of  Maryland. 

The  act  of  1850,  passed  to  secure  them  in  the 
enjoyment  of  their  acknowledged  rights,  had  been 
received  with  a  shout  of  disapprobation,  in  cer- 
tain parts  of  the  country.  Meetings  had  been 
held  in  many  places  in  the  north,  denouncing  the 
law  and  advising  a  traitorous  resistance  to  its 
execution  :  conventions  of  infuriated  fanatics  had 
incited  to  acts  of  rebellion ;  and  even  the  pulpit 
had  been  defiled  with  furious  denunciations  of  the 
law,  and  exhortations  to  a  rebellious  resistance 
to  it. 

The  government  was  perfectly  justified  in  sup- 
posing that  this  transaction  was  but  the  first  overt 
act  of  a  treasonable  conspiracy  extending  over 
many  of  the  Northern  States,  to  resist  by  force 
of  arms  the  execution  of  this  article  of  the  Con- 
stitution and  the  laws  framed  in  pursuance  of  it. 
In  making  these  arrests,  and  having  this  investi- 
gation, the  officers  of  government  have  done  no 
more  than  their  strict  duty. 

The  activity,  zeal  and  ability,  which  have  been 
exhibited  by  the  learned  attorney  of  the  United 
States,  in  endeavoring  to  bring  to  condign  punish- 
ment the  perpetrators  of  this  gross  offence,  are 
deserving  of  all  praise.  It  has  given  great  satis- 
faction to  the  Court  also,  that  the  learned  Attor- 
ney General  of  Maryland,  and  the  very  able  coun- 
sel associated  with  him,  have  taken  part  in  this 
prosecution. 

And  I  am  persuaded  that  notwithstanding  the 
unfortunate  and  disgraceful  occurrence  which  has 
taken  place,  and  the  just  feelings  of  indignation 
felt  by  the  people  of  Maryland,  caused  by  it;  this 
meeting  of  that  State  by  its  representative  here 
with  the  people  of  Pennsylvania,  will  tend  to 
efface  all  angry  feelings,  and  foster  those  of  respect 
and  friendship  between  the  people  of  these  ad- 
joining States. 

And  though  the  duty  of  punishing  the  perpe- 
trators of  this  outrage,  may  have  to  be  trans- 
ferred in  whole  or  in  part,  to  the  courts  of  Lan- 
caster County,  we  have  an  assurance  from  the 
activity  and  zeal,  already  exhibited  by  the  law 
officers  of  that  county,  that  it  will  be  performed 
with  all,  fidelity. 

With  these  remarks  the  case  is  committed  to 
you. 


UNITED  STATES  V.  HAN  WAY. 


249 


[Judge  Grier  announced  to  the  jury  his  in- 
tention of  remaining  in  Court  for  a  short  time, 
for  the  purpose  of  receiving  their  verdict,  upon 
which  they  retired,  and  after  an  absence  of  about 
fifteen  minutes  returned.] 

Clerk.  Jurors  will  please  answer  to  their 
names. 

All  jurors  present. 

Clerk.    Gentlemen  of  the  Jury,  have  you 
agreed  upon  your  verdict  ? 
Jurors.  Yes,  Sir. 

Clerk.  Prisoner,  stand  up.  Jurors  look  up- 
on the  prisoner.  Prisoner  look  upon  the  jurors. 
How  say  you,  Jurors,  is  Castner  Hanway  guilty  of 
the  Treason,  of  which  heretofore  he  stands  in- 
dicted in  the  manner  or  form  as  he  stands  in- 
dicted, or  not  guilty. 

Jurors.    NOT  GUILTY. 

Clerk.  Gentlemen  of  the  Jury,  hearken  to 
your  verdict  as  the  Court  have  it  recorded.  You 
say  that  Castner  Hanway  is  not  guilty  of  the 
Treason  for  which  heretofore  he  stands  indicted, 
in  the  manner  and  form  in  which  he  stands  in- 
dicted, and  so  you  say  all. 

Jurors.    Yes  Sir. 

Mr.  Ashmead.  May  it  please  your  Honour— 
against  Castner  Hanway,  the  defendant,  who  has 
just  been  acquitted,  there  were  four  other  bills 
in  the  District  Court  for  misdemeanour.  Consi- 
dering the  circumstances  of  the  case,  and  the 
ordeal  through  which  he  has  passed,  I  might  as 
well  state,  if  there  is  no  other  process  to  prevent 
it,  I  know  of  no  other  obstacle  in  the  way  of  his 
discharge. 

Judge  Grier.  Castner  Hanway  is  therefore 
discharged. 

Mr.  Ashmead.  I  will  enter  a  "  nolle  prose- 
qui" on  other  bills  for  misdemeanor  found  against 
him. 

Judge  Grier.  Gentlemen  of  the  Jury  you 
are  discharged. 

Judge  Kane.  Until  Wednesday  next,  at  10 
o'clock. 

The  Court  is  adjourned  till  10  o'clock  on  Wed- 
nesday, December  17th. 


Wednesday,  December  17,  1851. 
Court  was  opened  at  10  o'clock. 
PRESENT,  JUDGE  KANE. 
List  of  Jurors  called. 

J.  W.  Ashmead,  [District  Attorney.)  May  it 
please  your  Honour.  It  is  not  my  intention  to 
try  the  cases  of  the  other  defendants,  who  are  in 
custody,  charged  with  having  committed  High 
Treason  against  the  United  States.  Judge  Grier 
has  decided,  that  taking  the  whole  of  the  evi- 


dence given  on  the  part  of  the  government  in 
the  trial  of  Hanway  to  be  true,  it  does  not  con- 
stitute the  crime  charged  in  the  indictment.  He 
does  say,  however,  that  the  facts  px*oved  make 
out  the  offences  of  riot  and  murder,  and  that 
they  are  cognizable  only  in  a  State  court.  Un- 
der these  circumstances,  it  is  my  design  to  enter 
a  nolle  prosequi  on  all  the  untried  bills  for  trea- 
son, and  to  transfer  the  custody  of  the  prisoners 
to  the  county  of  Lancaster,  to  await  the  result  ot 
such  proceedings  as  the  State  authorities  may 
deem  it  necessary  to  institute.  Detainers  have 
already  been  lodged  with  the  keeper  of  the  Moy- 
amensing  prison,  by  Mr.  John  L.  Thompson,  the 
District  Attorney  of  Lancaster  county.  I  feel 
conscious  that  I  have  fully  discharged  a  respon- 
sible public  duty,  and  cannot  but  regret,  that 
the  parties  who  participated  in  the  disgraceful 
occurrences  at  Christiana,  have  thus  far  eluded 
all  the  efforts  made  to  bring  them  to  justice. 

Judge  Kane.  I  do  not  know  that  the  District 
Attorney  asks  the  action  of  the  Court  in  any 
way. 

Mr.  Ashmead.  I  do  not.  My  object  is  mere- 
ly to  inform  the  Court  of  the  conclusion  at  which 
I  have  arrived.  I  have  no  motion  to  submit, 
and  cannot  perceive  that  the  action  of  the  Court 
is  in  any  way  necessary. 

Judge  Kane.  The  notice,  Gentlemen  of  the 
Jury,  which  the  District  Attorney  has  given  us, 
makes  it  plain  that  there  will  be  no  further  oc- 
casion for  your  attendance  during  this  term.  It 
only  remains,  therefore,  for  the  Court  to  render 
you  thanks  for  the  fidelity  with  which  you  have 
attended,  at  some  inconvenience  to  yourselves, 
and  to  discharge  you  for  the  term. 

John  M.  Read.  I  desire  to  bring  to  the  no- 
tice of  the  Court,  the  subject  of  paying  the  wit- 
nesses subpoened  by  Castner  Hanway,  and  which 
witnesses  were  material  and  necessary.to  his  de- 
fence. The  United  States  is  bound  to  pay  them, 
and  it  has  been  suggested  at  a  previous  ses- 
sion of  the  Court. 

Mr.  Ashmead.  The  proper  way  to  bring  up 
the  question  will  be  for  the  defendant's  counsel 
to  take  a  rule  to  show  cause  why  their  witnesses' 
bill  should  not  be  taxed  by  the  defendant  and 
paid  by  the  United  States,  and  fix  some  day  for 
hearing  an  argument  upon  it.  I  will  then  be 
prepared  to  discuss  it  fully.  It  is  a  question  of 
great  practical  importance,  and  likely  to  estab- 
lish a  precedent  for  future  cases. 

Judge  Kane.  The  authority  to  pay  a  defen- 
dants' witnesses,  resides  constructively  in  the 
Court. 

Mr.  Read.  The  Court  have  a  precedent  for 
it  in  the  case  of  Aaron  Burr,  to  be  found  in  1 
Burr's  trial,  531.  In  that  case  it  was  objected 
on  the  part  of  the  United  States,  and  after  hav- 
ing been  fully  argued,  was  allowed  to  Burr's  wit- 
nesses. I  ask,  however,  for  a  rule  to  show 
cause,  to  be  returnable  on  such  day  as  may  suit 
the  convenience  of  the  Court. 

The  rule  to  show  cause  was  granted,  and 
made  returnable  on  Friday  Dec.  19th,  at  10 
o'clock,  A.  M. 


250 


TREASON  CASES. 


CIRCUIT  COURT  OF  THE  UNITED  STATES. 
Friday,  Dec.  19th,  1851. 

THE  COURT  OPENED  AT  10  O'CLOCK. 

PRESENT,  JUDGE  KANE. 

Mr.  John  M.  Read.  This,  may  it  please 
your  honours,  is  an  importaut  question  to  my 
client.  It  involves  the  question,  whether  he  is 
to  be  placed  in  somewhat  the  same  situation  that 
he  was  before  the  commencement  of- this  prose- 
cution, or  whether  he  is  to  be  entirely  ruined  ? 
Because,  that  he  is  to  pay  in  some  shape  or 
other — or  somebody  is  to  pay  the  witnesses 
something  on  his  behalf,  is  clear;  and  if  he  is  to 
pay  it,  he  may -as  well  be  put  in  prison  by  some 
one  or  other.of  them,  as  by  the  United  States. 
It  is  not,  therefore,  an  ordinary  question  of  a 
few  dollars,  but  either  this  individual  acquitted 
under  the  charge  of  the  court,  and  by  a  jury  of 
his  country,  is  to  be  turned  out  upon  the  world 
a  pauper — the  whole  of  his  small  earnings  have 
been  exhausted  in  the  defence  of  himself  before 
this  court,  and  the  remainder,  if  he  has  any,  are 
to  be  taken  to  pay  the  witnesses  for  his  defence, 
and  made  necessary  by  the  charges  on  the  part 
of  the  United  States:  and  the  question  is,  whe- 
ther a  precedent  set  by  the  highest  authority  in 
this  country,  is  not  to  form  a  precedent  for  this 
court,  until  some  other  court  choses  to  re- 
verse it. 

This  is  not  the  case,  as  it  might  have  been,  of 
a  rich  man  in  this  community  worth  a  hundred 
or  two  hundred  thousand  dollars,  or  as  Astor  or 
Girard,  worth  five  millions,  to  whom  one,  two  or 
three  thousand  dollars  would  have  been  nothing, 
but  this  is  a  question  of  life  or  death — whether 
he  is  to  be  indebted  to  the  charity  of  these  wit- 
nesses for  coming  here,  or  he  is  to  pay  them,  or 
the  United  States  ;  as  I  contend  they  are  bound, 
■ — are  to  pay  them. 

I  read  on  Wednesday  a  passage  from  p.  531, 
Vol.  2,  of  Burr's  trial. 

This  subject  was  in  some  measure  or  other  be- 
fore the  court  nearly  three  months,  that  is,  from 
the  month  of  June  till  the  month  of  August,  when 
the  decision  was  made,  and  it  arose  at  an  early 
period  of  the  case,  when  the  Chief  Justice  of  the 
United  States  decided  exactly  as  Judge  Tilgh- 
man  decided  in  1833,  here,  before  the  repeal  of 
the  Judiciary.  Act  by  John  Adams, — that  the 
party  was  entitled  to  process  before  he  was  in- 
dicted. In  the  course  of  Burr's  trial,  his  counsel 
moved  for  a  subpoena  duces  tecum,  to  the  Presi- 
dent of  the  United  States,  to  bring  certain  papers 
-  before  the  court.  Your  honor,  by  turning  back 
to  this  portion  of  Burr's  trial,  will  find,  as  far 
back  as  page  121,  of  1  Burr,  &c,  (reads.) 

It  was  acknowledged  that  the  President  could 
be  subpoenaed,  in  the  course  of  the  argument — 
various 'concessions  were  made,  and  it  was  nar- 
rowed down  to  a  very  simple  principle  in  fact. 
At  pages  177-8,  is  the  deliberate  opinion  of  the 
Chief  Justice,  and  I  state  it  for  the  purpose  of 
showing,  that  this  question  of  summoning  wit- 
nesses, had  been  made  before  the  Chief  Justice, 


in  June,  1807,  and  the  final  order  was  not  made 
till  August,  1807,  so  that  there  was  an  opportu- 
nity for  deliberation  for  nearly  three  months, 
and  the  last  decision  is  to  be  considered  as  made 
on  the  fullest  reflection.  (Reads.) 

Now  may  it  please  your  honours,  I  have  read 
the  whole  of  that,  to  show  that  in  June,  1807, 
this  question  in  some  form  or  other  was  pre- 
sented directly  to  the  mind  of  the  Chief  Justice 
of  the  United  States,  and  when  in  August,  1807, 
he  makes  the  order,  it  is  upon  full  reflection,  and 
it  is  the  deliberate  opinion  of  the  greatest  law 
officer  that  ever  presided  in'a  court  of  justice  in 
the  United  States.  There  is  not  a  single  authority 
against  this.  I  will  challenge  my  learned  friend 
the  District  Attorney,  to  produce  a  single  autho- 
rity from  the  courts  of  the  United  States,  that 
has  said  that  this  was  not  the  law  of  the  lanrl. 

That  was  the  case  of  witnesses  summoned  by 
Col.  Burr,  and  never  examined ;  the  whole  case 
terminated  because  the  evidence  on  the  part  ot 
the  prosecution  was  insufficient  to  sustain  the 
accusation.  It  is  a  case  on  all  fours  with  this. 
There  is  authority.  If  there  is  to  be  a  contra- 
diction where  is  it?  Is  there  any  court  in  the 
United  States,  or  any  decision,  that  has  said 
Chief  Justice  Marshall  was  wrong  in  that  deci- 
sion ?  And  it  is  evident  that  question  was  pre- 
sented to  his  mind  three  months  before  the  deci- 
sion, and  received  the  deliberate  attention  of  the 
judge. 

In  addition  to  that,  the  attorney  of  the  United 
States,  who  took  every  objection  there  it  was 
possible  for  man  to  take,  to  the  course  of  pro- 
ceeding on  the  part  of  Col.  Burr  and  his  counsel, 
does  not  dare  to  say  they  shall  not  be  paid — his 
only  objection  is,  that  it  will  take  too  large  an 
amount  of  money  from  the  public  treasury.  In 
this  case,  your  honor,  I  know  will  not  look  at 
the  amount,  except  to  see  if  it  will  ruin  this  man. 
You  will  consider  it  upon  a  question  of  princi- 
ple ;  whether  five  dollars  or  five  thousand,  it  is 
the  same  only  so  far  as  my  client  is  concerned ; 
if  five  dollars,  it  would  not  be  worth  the  argu- 
ment ;  if  five  thousand,  it  will  be  ruinous. 

As  to  the  expenses  of  the  United  States,  I 
have  nothing  to  do  with  them  ;  if  they  institute 
these  proceedings,  they  must  pay  the  expenses. 
In  the  course  of  this  trial,  there  has  been  a  large 
sum  of  money  expended  for  a  useless  object.  I 
do  not  blame  the  United  States  for  it,  but  to 
bolster  up  one  witness,  more  has  been  expended 
than  would  pay  us ;  a  very  large  amount  of 
money  has  been  paid  to  bring  witnesses  here  at 
the  request  of  a  particular  individual,  and  that 
individual  entirely  disbelieved  by  the  jury,  and 
no  credit  given  to  him;  a  large  number  of  wit- 
nesses were  examined,  and  paid  for  days  that 
they  probably  never  attended.  I  do  not  blame 
the  attorney  of  the  United  States  for  that,  but 
the  question  is,  whether  this  poor  man  who  has 
been  acquitted,  is  to  be  turned  out  on  the  world, 
and  after  such  a  decision  as  this,  he  is  not  to  be 
paid. 

Judge  Kane.  The  case  of  Burr  has  this  one 
point  of  difference,  which  may  be  worth  a  notice. 
The  payment  there  was  pending  the  trial — it 
therefore  may  stand  in  the  same  category  with  a 


UNITED  STATES  V.  HANWAY. 


251 


tender  of  expenses,  in  order  to  enable  a  witness 
to  be  in  attendance.  After  verdict  and  judgment 
it  may  be  a  question  whether  there  is  not  a  dif- 
ferent state  of  things — whether  you  do  not  come 
to  a  case  of  costs  rather  than  expenses.  I  throw 
out  the  idea  that  you  may  turn  your  minds  to  it. 

Me.  Ashmead.  The  idea  your  honor  suggests 
now.  is  the  distinction  taken  in  terms  by  the  act 
of  Congress,  upon  which  I  shall  rely. 

Me.  Read.  I  understand,  in  relation  to  more 
expenses,  that  some  of  the  witnesses  were  poor 
and  some  were  not. 

Judge  Kane.  I  understand  the  Chief  Justice 
not  to  have  gone  into  an  inquiry  as  to  the  cir- 
cumstances of  each  individual.  An  application 
was  made,  and  the  only  question  discussed,  was 
the  materiality  of  the  testimony.  Being  satisfied 
of  that,  and  they  being  in  attendance,  he  directed 
the  marshal  to  pay  them  once  a  week,  I  believe, 
for  their  support. 

Me.  Read.  To  make  payment  for  their  al- 
lowance, &c,  (reads.) 

The  attorney  of  the  United  States  agreed  in 
that  case,  that  as  soon  as  they  gave  their  evi- 
dence they  were  entitled  to  their  pay,  (reads.) 

The  District  Attorney  for  the  District  of  Vir- 
ginia says,  the  law  contemplate  that  as  soon  as 
they  gave  their  evidence — that  is  our  case  ;  we 
have  given  .our  evidence — our  witnesses  are  in 
the  state  in  which  he  said  they  ought  to  be.  The 
objection  was,  that  they  might  not  be  material, 
and  that  they  ought  not  to  be  paid  then,  but  the 
law  contemplated  that  they  should  be  paid  the 
moment  they  gave  their  evidence  ;  that  implies, 
that  if  they  had  given  their  evidence  the  District 
Attorney  would  have  said,  they  have  given  their 
evidence  and  they  are  material  witnesses,  and 
they  must  be  paid.  Otherwise  in  capital  cases 
involving  life,  if  the  witnesses  are  to  come  from 
a  remote  part  of  the  United  States,  which  was 
not  provided  for  in  the  act,  and  which  does  not 
fulfil  the  constitutional  provision — if  they  are  to 
come  from  a  remote  part  of  the  United  States 
how  is  it  possible  that  any  man  tried  for  a  capi- 
tal crime  can  ever  have  such  process  as  the 
United  States  have.  By  the  terms  of  the  Con- 
stitution and  amendments,  it  is  unquestionably 
intended  that  in  a  capital  case  the  defendant 
shall  be  placed  on  the  same  footing  as  the 
United  States ;  if  they  try  him  for  his  life 
they  are  bound  to  go  to  the  expense  —  if  he 
has  witnesses  they  are  to  pay  them.  If  he 
is  convicted  and  hung,  who  is  to  pay  the  wit- 
nesses ?  If  he  is  acquitted,  who  is  to  pay  them  ? 
The  United .  States  —  after  they  have  hung  a 
man,  cannot  attaint  him,  and  the  moment  they 
hang  him,  all  claim  upon  him  is  gone,  if  he  is 
hung  the  claim  is  upon  the  United  States  ;  and 
if  he  is  acquitted,  upon  whom  .is  the  claim  ? 
Upon  the  United  States.  *  The  provision  of  the 
Constitution  which  was  adopted  after  the  Act  of 
1790 — the  eighth  amendment  to  the  Constitution 
provides,  that  there  shall  be  a  perfect  equality, 
and  that  is  the  meaning  of  it.  By  looking  at  the 
debates  in  the  conventions  of  the  States,  parti- 
cularly in  Virginia  and  the  Southern  States, 
where  this  question  of  trial  by  jury  was  dis- 
cussed in  every  possible  shape  and  form,  parti- 


cularly as  according  to  the  original  Constitution, 
there  was  no  provision  for  this  trial  by  jury  ; 
they  put  into  the  amendment  that  the  party  was 
to  be  placed  upon  the  same  footing  with  the 
United  States,  and  in  all  capital  cases,  especially 
in  treason,  he  was  to  have  the  full  benefit  of  pro- 
cess ;  and  if  convicted,  the  witnesses  were  to 
be  paid  by  the  United  States ;  if  acquitted,  it 
was  to  be  the  same.  In  the  case  of  Burr,  the 
very  difficulty  your  honor  mentioned  was  in  the 
mind  of  Mr.  Hanway,  and  he  agreed  that  if  the 
evidence  was  closed,  they  might  be  paid,  but  ti.l 
it  was,  they  might  be  immaterial,  and  be  paid 
improperly. 

In  the  case  of  The  United  States  v.  Moore,  in 
Wallace's  Reports,  page  23,  decided  at  May 
Sessions,  1801,  (reads.)    At  page  28,  (reads.) 

Me.  Ashmead.  To  save  time,  I  want  it  un- 
derstood, that  I  do  not  deny  that  he  is  entitled 
to  process  at  any  time. 

Me.  Read.  I  understand  that — but  my  friend 
wants  to  stop  there,  and  to  say  that  he  is  enti- 
tled to  process  but  not  entitled  to  the  means  of 
getting  his  witnesses  here,  and  keeping  them 
here.  I  contend,  that  the  construction  of  Chief 
Justice  Marshall  is  a  correct  one  ;  the  defendant 
is  put  on  an  equality  with  the  United  States,  and 
that  is,  that  the  United  States  shall  pay  his  wit- 
nesses. It  is  a  legitimate  result  from  all  these 
authorities.  It  is  the  result  at  which  Chief 
Justice  Marshall  arrived,  and  it  is  the  result  at 
which  I  ask  your  honor  to  arrive,  (reads.) 

I  cite  that  because  it  is  the  germ  of  the  deci- 
sion of  Chief  Justice  Marshall,  six  years  after- 
wards. This  was  in  1801,  and  in  1807  the  same 
conclusion  was  come  to ;  both  of  the  judges 
were  men  of  the  utmost  purity  of  character. 

Judge  Kane.  Judge  Tilghman  evidently  con- 
templated the  power  to  put  a  witness  under  re- 
cognizance— he  goes  further  than  a  subpoena. 

Me.  Read.  He  construes  that  article  of  the 
amendment  of  the  Constitution,  and  the  Act  of 
1790  was  passed  before  that  was  finally  ratified 
by  the  States;  and  it  is  not  only  the  provision  in 
the  law  itself  which  I  think  is  perfectly  clear — 
but  it  is  backed  by  a  constitutional  provision. 

Me.  Ashmead.  The  same  provision  is  in  the 
constitution  of  the  State  of  Pennsylvania. 

Me.  Read.  I  know  the  District  Attorney 
does  not  want  to  pay  these  costs,  but  our  object 
is  to  have  them  paid ;  for  I  say,  if  this  case  were 
submitted  to  the  people  of  the  United  States  inde- 
pendent of  any  law — not  asking  your  htnour,  of 
course,  to  take  notice  of  anything  of  that  kind— 
they  would  say,  the  moment  the  man  is  ac- 
quitted let  his  costs  be  paid.  Now  I  say,  is 
there  not  something  in  the  constitution  to  allow 
the  man's  witnesses  to  be  paid  whether  he  be 
acquitted  or  convicted?  It  is  impossible  that 
there  should  not  be  some  place  of  payment. 
After  the  man  is  hung,  you  can  get  nothing  out 
of  him,  and  after  he  is  acquitted,  he  should  cer- 
tainly be  in  the  same  position  as  regards  this 
matter  as  if  convicted.  This  I  know  is  not  from 
the  common  law.  What  have  they  done  in  Eng- 
land? Comparatively  nothing,  except  that  so 
far  as  the  prosecutor  and  the  witnesses  are  con- 
cerned, they  have  been  daily  extending  his  ex- 


252 


TREASON"  CASES. 


penses  and  have  been  allowing  the  courts  to 
give  rewards  to  witnesses  who  have  been  diligent 
in  finding  out  crimes.  We  pretend  to  be  favour- 
able to  defendants,  but  what  are  they?  Till 
■within  the  last  few  years,  except  in  cases  of 
felony,  they  have  not  been  entitled  to  counsel, 
and  in  cases  of  treason,  prior  to  the  statute  of 
"William  III.  they  had  no  counsel  except  to  argue 
points  of  law.  I  say  that  when  the  constitution 
of  the  United  States  was  formed,  we  took  a  new 
start,  and  we  began  and  laid  down  the  principle 
appearing  in  the  amendments,  that  the  defendant 
shall  have  the  same  advantages  as  the  United 
States,  and  when  the  United  States  undertake  to 
pay  their  witnesses  they  are  bound  to  pay  the  wit- 
nesses of  the  defendant  particularly  when  he  is  ac- 
quitted. His  honour  the  Chief  Justice  puts  it  upon 
the  constitution  and  upon  the  sacred  rights  of  man 
and  the  general  usage  of  the  country — and  not 
upon  the  usage  of  a  particular  State.  That  is 
the  ground  I  take.  I  may  be  wrong,  but  I  know 
that  I  can  produce  one  decision  up  to  the  point, 
decided  by  the  highest  law  officer  in  the  United 
States  without  contradiction,  not  a  single  soul  has 
ever  complained  of  it,  and  all  you  want  is  such  a 
decision,  and  now  forty-four  years  afterwards  we 
are  not  to  go  back  and  say  it  was  wrong.  Chief 
Justice  Marshall  seldom  made  mistakes,  and  if 
he  did  they  would  be  at  least,  as  in  this  case  on 
the  side  of  humanity,  and  not  on  the  side  of 
arbitrary  power. 

Then,  grounding  our  application  to  your  honor 
upon  the  law  of  1790,  upon  the  8th  amendment 
to  the  constitution,  and  upon  this  deliberate  de- 
cision in  Burr's  case,  in  August,  1807,  after  an 
argument  in  June,  1807,  I  think  we  have  laid 
a  sufficient  ground  to  ask  your  honor  to  allow 
the  witnesses  to  be  paid.  I  am  aware  that  there 
are  two  or  three  acts  of  congress,  to  which  I  will 
refer — for  there  has  been  limited  action  by  con- 
gress at  different  periods  in  relation  to  the  pay 
of  the  witnesses  on  the  part  of  the  defendant, 
but  I  believe  they  will  be  found  to  be  applicable 
to  cases,  not  like  the  present. 

The  first  act,  I  think,  on  the  subject,  is  the 
act  of  23d  of  August,  1842,  5th  statutes  at  large, 
page  516.  It  is  an  act  further  supplementary, 
&c.  (reads).  The  next  act  of  congress  is  the  one 
to  which  I  suppose  my  learned  friend  refers.  It 
is  the  act  of  8th  of  August,  1846,  9th  vol.  of  the 
laws,  page  72.  This  act,  which  authorized  your 
honors  to  transmit  indictments  from  one  court 
to  the  other,  in  section  11th  says,  &c.  (reads  a 
part  and  says),  your  honor  will  perceive  that 
up  to  that,  we  have  by  the  constitution,  compul- 
sory process,  entirely  independent  of  the  action 
of  the  court,  (reads  further  and  says),  I  grant 
it,  that  this  is  a  particular  provision  for  a  par- 
ticular case  which  if  you  chose  to  take  advan- 
tage of  it,  can  be  put  in  that  way,  (continues 
reading. ) 

I  would  like  to  know  if  that  is  a  repeal  of  any 
part  of  the  crimes'  act'  of  1790,  or  a  repeal  of 
the  amendment  to  the  constitution?  No  man 
ever  dreamed  that  that  was  a  repeal  of  it.  Is  it 
a  repeal  of  the  act  of  '42  ?  .  Not  at  all.  It  is  a 
repeal  of  anything  inconsistent  with  it,  and  the 
provision  is  more  large  and  extensive ;  and  I 


suppose  no  man  would  ever  use  that  provision 
there,  unless  the  invividual  whom  he  represented 
was  so  poor  that  he  had  not  one  red  cent  in  his 
pocket.  It  asks  a  man  what  he  expects  to  prove  to 
lay  open  his  whole  case  to  the  United  States,  is  this 
a  following  out  of  the  constitution  ?  It  is  a  law 
limited  to  itself,  and  when  we  come  to  apply 
under  that  law  we  will  be  entitled  to  what  it 
gives  us  and  nothing  more,  but  our  application 
is  under  the  crimes'  act  and  under  the  8th 
amendment  to  the  constitution,  and  under  the 
decision  of  Chief  Justice  Marshall.  ^ 

May  it  please  your  honor,  this  act  has  nothing 
to  do  with  this  question,  and  the  gentlemen  who 
put  it  there  had  no  idea  of  its  ever  repealing 
the  crimes'  act  of  1790.  Upon  the  same  ground 
that  might  as  well  repeal  the  counsel  part,  for 
it  is  inconsistent  with  it.  If  the  defendant  is  to 
disclose  all  his  evidence  to  the  United  States, 
this  is  no  boon  at  all ;  it  is  an  improper  attempt 
on  the  part  of  the  congress  of  the  United  States 
to  get  at  a  man's  case  before  the  United  States 
has  got  its  own  case  arranged.  It  is  wrong,  it  is 
not  inconsistent  in  any  way  with  the  provision, 
and  I  take  it,  it  has  nothing  to  do  with  it. 

I  have  laid  the  ground  before  your  honor, 
upon  which  we  think  that  we  are  entitled  to  the 
payment  of  these  witnesses ;  and  the  ground  is, 
that  there  is  not  only  the  general  law  of  the 
land,  but  there  is  a  direct  precedent,  which  if 
your  honor  thinks  is  not,  you  are  bound  to 
overrule,  and  which  you  will  be  called  upon  to 
overrule  if  you  decide  as  my  friend  the  District 
Attorney  of  the  United  States  desires. 

Mr.  John  W.  Ashmead.  May  it  Please 
the  Court:  I  agree  that  this  is  an  important 
question — a  question  of  principle  which  should 
be  settled  with  great  care.  If  your  honour 
should  establish  the  precedent,  and  make  the 
order  that  the  United  States  shall  pay  the  ex- 
penses of  the  defendant's  witnesses,  I  think  it 
is  very  well  that  a  nation  has  to  bear  the  charge ; 
for  if  it  were  to  be  insisted  on  in  any  of  the 
States,  I  am  sure  it  would  not  only  tend  to  en- 
courage litigation,  but  would  very  soon  bank- 
rupt the  States,  which  would  establish  the  rule. 
I  do  not  see  that  there  is  any  special  reason  for 
it  in  this  case  ;  for  I  am  not  disposed  to  concede 
that  the  evidence  before  the  jury  exculpated  the 
defendant  from  all  blame  ;  on  the  contrary,  I  am 
inclined  to  believe,  that  if  there  had  been  in  this 
country  such  a  verdict,  as  I  am  told  can  be  ren- 
dered by  a  jury  in  Scotland — a  middle  verdict — 
that  it  would  have  been  the  sort  of  verdict  that 
would  have  been  presented  here.  I  am  told  that 
according  to  their  form,  a  jury  may  return  a 
verdict  of  guilty  or  not  guilty,  and  an  interme- 
diate verdict  of  "not  proven,"  and  I  think  that 
the  latter  kind  of  verdict  would  have  been  ren- 
dered here. 

I  need  not  state,  that  in  Hanway's  case  there 
was  nothing  for  the  jury  to  decide,  but  the  whole 
question  of  law  and  fact  was  virtually  determined 
by  the  court.  The  Circuit  Judge  instructed  the 
jury  that  taking  the  whole  of  the  testimony  given 
by  the  United  States  to  be  true,  it  did  not  make 
out  against  the  defendant,  the  offence  which  was 
charged  in  the  indictment.    Hence  the  jury  can- 


UNITED  STATES  V.  HANWAY. 


253 


not  be  construed  to  have  found  that  Hanway  was 
entirely  free  from  blame,  but  all  that  the  verdict 
can  be  considered  to  have  settled  is,  that  the 
crime  charged  in  the  indictment  was  not  sustain- 
ed by  testimony  adequate  and  competent  to  con- 
vict. It  is,  therefore,  a  case  in  which  the  ac- 
quittal of  the  defendant  was  wholly  upon  tech- 
nical grounds,  under  circumstances  too,  where 
all  who  saw  examined  the  evidence,  must  have 
been  satisfied  that  he  was  active  in  instigating 
the  blacks  at  Christiana,  to  commit  the  outrage 
upon  the  deceased  Mr.  Gorsuch,  the  facts  of  which 
are  now  familiar  to  the  country.  I  will  not 
pause  here  to  explain  the  character  of  the  sad 
occurrences  of  the  11th  of  September  last,  nor 
repeat  to  this  court  the  impressions  which  they 
every  where  made  upon  the  public  mind.  It  was 
at  least  to  be  hoped,  that  all  who  had  partici- 
pated in  these  transactions  would  be  speedily 
brought  to  justice,  and  that  condign  punishment 
would  be  inflicted  upon  the  guilty  parties.  This 
just  expectation  has  thus  far  been  disappointed, 
and  the  past  attempt  to  make  them  responsible 
to  the  criminal  laws  of  the  United  States,  has 
been  defeated  in  consequence  of  the  evidence 
not  making  out  the  specific  offence  which  was 
charged  in  the  indictment.  It  was  not  treason, 
said  Judge  Geier,  but  murder,  and  riot,  and 
therefore  not  within  the  cognizance  of  the  federal 
tribunals,  but  subject  only  to  State  jurisdiction. 
Had  Hanway  therefore,  been  proceeded  against 
in  a  State  court,  and  arraigned  for  murder  or 
riot,  the  probability  is  that  he  would  have  been 
convicted  of  one  or  the  other  of  these  offences. 
He  has  escaped  condemnation  here,  not  on  the 
ground  that  he  was  innocent  of  all  participation 
in  the  reckless  and  bloody  deeds  which  occurred 
at  the  house  of  Parker,  but  because  he  did  not 
commit  the  specific  crime  alleged  against  him 
by  the  Grand  Jury.  This  being  the  nature  of 
the  facts,  what  is  it  that  my  learned  friend  upon 
the  other  side,  asks  may  close  ?  That  your 
honour  should  make  an  order  directing  the  pay- 
ment of  the  costs  of  the  defendant's  witnesses, 
out  of  the  treasury  of  the  United  States.  I  deny 
that  any  power  exists  in  the  court  to  make  the 
order  prayed  for,  and  that  even  if  the  power  did 
exist,  it  should  not  be  exercised  under  the  pecu- 
liar circumstances  of  this  case.  These  propo- 
sitions I  now  proceed  to  defend. 

I  commence  by  remarking,  that  what  you  are 
asked  to  do,  is  to  establish  a  precedent  in  respect 
to  costs  of  a  fearful  character,  and  before  it  is 
attempted,  there  ought  to  be  some  clear  law  to 
sustain  it.  If  the  defendant's  witnesses  are 
paid  in  .this  case,  I  can  see  no  reason  why  you 
may  not  be  called  upon  to  pay  them  in  every 
criminal  case.  The  rule  should  not,  and  ought 
not,  to  be  confined  to  cases  where  treason 
against  the  United  States  is  charged,  but  if  it 
exists  at  all,  must  embrace  all  descriptions  of 
cases,  in  which  offences  are  alleged  to  have  been 
committed  against  the  government.  Under  such 
a  practice,  a  defendant  could  subpoena  as  many 
witnesses  as  he  deemed  essential  to  his  de- 
fence, and  they  would  all  serve  to  be  paid  out 
of  the  public  treasury.  It  is  a  proposition 
which  has  never  yet  been  contended  for  in  any  ' 


Federal  or  State  tribunal,  and  for  which  the 
decision  of  no  court  can  be  cited. 

Mr.  Read.  The  State  of  Massachusetts,  has 
a  statute  which  contains  an  exrress  provision, 
that  in  cases  of  murder,  the  defendant's  wit- 
nesses shall  be  paid. 

Mr.  Ashmead.  I  have  not  stated  that  there 
is  no  exception  to  the  rule  tor  which  I  am  con- 
tending. In  perhaps  all  of  I  he  States  there  are 
statutory  provisions  upon  the  subject  of  costs  in 
both  civil  and  criminal  cases.  So  there  is  an  act 
of  Congress  upon  the  same  subject,  which  I  will 
have  occasion  to  cite  and  examine  hereafter. 
If,  however,  there  be  a  statute  of  Massachusetts, 
which  give  costs  to  a  defendant's  witnesses  in 
cases  of  murder,  instead  -of  conflicting  with  my 
positions,  it  strengthens  and  confirms  them.  It 
shows  that  without  the  statute,  the  costs  could 
not  be  had,  and  hence,  that  it  required  express 
legislation  to  give  them. 

The  same  thing  is  true  in  respect  to  costs  in 
the  Courts  of  the  United  States.  A  defendant 
at  common  law  was  not  entitled  to  have  his  wit- 
nesses paid.  How  then  could  he  procure  pay- 
ment unless  by  virtue  of  an  act  of  Congress, 
which  met  the  case  ?  If  the  common  law  gives 
him  no  such  right,  and  no  act  of  Congress  pro- 
vided a  remedy,  where  can  a  defendant  go  for 
relief?  Surely  not  to  the  Court,  for  it  possesses 
no  powers  others  than  those  derived  from  the 
law. 

The  decision  of  the  late  Chief  Justice  Mar- 
shall, or  rather  the  order  made  by  him  in  the 
case  of  Aaron  Burr,  is  relied  upon  as  establish- 
ing a  precedent  which  must  govern  this  Court. 
That  case  was  tried  in  1808,  and  I  assert,  that 
from  that  time  to  the  present  day,  there  is  not 
an  order  of  a  similar  kind  to  be  found  upon  the 
minutes  of  any  court,  or  on  the  pages  of  any 
book  of  reports.  Is  it  not  strange,  that  in  the 
numerous  cases  which  have  occurred  in  the 
Courts  of  the  United  States,  where  defendants 
have  been  tried  for  criminal  offences,  that  no 
counsel  learned  in  the  law  should  have  imagined 
or  supposed  that  the  witnesses  for  a  defendant 
were  entitled  to  be  paid  out  of  the  treasury  of 
the  United  States,  in  the  same  manner  that  the 
witnesses  for  the  prosecution  were  paid,  and  that 
the  discovery  should  for  the  first  time  be  made  in 
the  present  case  ?  If  a  State  Court  were  to  hold 
the  doctrine  that  a  defendant's  witnesses  could 
be  paid  out  of  a  state  or  county  treasury,  it 
would  soon  bankrupt  the  State  in  which  such  a 
practice  should  prevail ;  and  if  extended  to  the 
federal  courts,  it  would  make  the  expense  a 
heavy  drain  upon  the  national  treasury,  which 
would  soon  be  felt  by  the  people.  There  are  no 
circumstances  whatever  which  would  justify  any 
such  rule,  and  no  precedents  can  be  found  to 
sustain  it.  Let  us  now  examine  what  was  done 
in  the  case  of  Aaron  Burr,  and  see  whether  it 
bears  any  analogy  to  the  case  now  before  the 
Court.  It  will  be  found  in  the  first  volume  of  the 
report  of  his  trial,  page  531.    What  is  said? 

"Mr.  Botts  moved  the  Court  to  direct  the 
Marshal  to  make  payment  daily  of  their  allow- 
ance to  about  twenty  witnesses,  most  of  whom 
were  so  poor  that  they  could  not  subsist  without 


254 


TREASON  CASES. 


it.  He  had  hoped  the  marshal  would  have  paid 
them  without  this  application.  Colonel  Burr 
thohght  them  material,  and  summoned  them 
from  the  best  information  he  could  obtain;  and 
when  the  United  States  ever  imprisoned  witnes- 
ses to  compel  their  attendance,  those  of  the  ac- 
cused ought  at  least  to  be  supplied  with  the 
means  of  subsistence. 

"  The  marshal  said  that  as  the  number  of  wit- 
nesses were  so  great,  and  many  of  them  were 
said  to  know  nothing  of  the  subject  in  contro- 
versy, he  was  cautioned  by  the  Attorney  for  the 
United  States,  not  to  pay  them  till  their  mate- 
riality was  ascertained,  or  till  the  court  ordered 
him. 

"  Mr.  Hay  said  that  the  expenses  were  so 
enormous  that  they  would  be  felt  by  the  national 
treasury,  though  it  was  full.  This  justified  the 
caution  alluded  to ;  and  the  laws  contemplated 
to  pay  the  witnesses  as  soon  as  they  gave  their 
evidence. 

"  Colonel  Burr  said,  that  when  the  Attorney 
cautioned  the  Marshal,  it  was  supposed  that  he 
had  summoned  between  two  and  three  hundred 
witnesses,  whereas  the  truth  was,  that  they  did 
not  exceed  twenty;  that  they  were  material; 
that  some  of  them  were  summoned  to  repel  what 
might  be  said  by  the  witnesses  for  the  United 
States;  that  the  United  States  had  many  advan- 
tages in  commanding  the  attendance  of  their 
witnesses,  which  he  had  not ;  that  he  would  not 
acquiesce  in  the  establishment  of  a  principle  that 
might  prove  injurious  to  others;  that  the  wit- 
nesses ought  to  be  paid,  and  he  hoped  that 
there  would  be  no  more  difficulty  made  on  the 
subject. 

"  After  some  more  desultory  observations,  as 
the  witnesses  were  stated  and  considered  to  be 
material,  the  court  directed  the  payment  to  be 
made  by  the  marshal." 

It  is  manifest,  may  it  please  the  court,  from 
what  I  have  read,  that  there  is  no  resemblance, 
between  the  order  made  by  Chief  Justice  Mar- 
shall, in  the  case  of  Aaron  Burr,  and  the  order 
which  the  court  is  asked  to  make  in  this  case. 
Mr.  Botts  put  his  motion  upon  the  distinct 
ground,  that  the  witnesses  were  so  poor  that  they 
could  not  subsist  from  day  to  day,  unless  they  were 
paid  by  the  marshal.  It  became  a  matter  of  ab- 
solute necessity,  that  some  provision  should  be 
made  for  their  support,  and  as  the  number  of 
them  did  not  exceed  twenty,  and  they  were  ma- 
terial to  the  defendant,  the  court  made  the  order 
for  the  payment,  the  United  States  Attorney 
interposing  no  objection  to  the  action  of  the 
court.  The  question  of  the  power  of  the  court 
to  give  such  a  direction  to  the  marshal,  was  not 
raised,  and  there  was  no  argument  or  discussion 
on  the  subject.  Can  it  now  be,  that  such  direc- 
tion of  the  chief  justice  is  to  be  tortured  into  a 
solemn  decision,  that  the  government  is  always 
to  pay  the  witnesses  summoned  by  a  defendant, 
and  that  the  court  can  direct  their  per  diem 
compensation  to  be  taxed  and  settled  by  the 
marshal  ?  It  never  has,  heretofore,  been  con- 
sidered a  case  ruling  any  such  doctrine,  and  is 
now,  for  the  first  time,  sought  to  be  used  in  the 


case  of  this  defendant,  with  what  success  it 
remains  to  be  seen. 

But,  supposing  the  court  did  possess  the  pre- 
cise authority  which  was  exercised  in  the  case 
of  Aaron  Burr,  is  there  any  resemblance  be- 
tween the  facts  exhibited  there,  and  those  which 
exist  in  this  case  ?  None.  Here,  the  defendant 
never  pretended  he  was  poor,  and  unable  to  pay 
his  witnesses,  or  that  they  could  not  subsist  from 
day  to  day,  unless  some  allowance  was  made  for 
their  maintenance.  On  the  contrary,  it  is  boldly 
avowed  that  the  defendant  is  in  no  such  condi- 
tion, and  the  ground  taken  is,  that  he  was  inno- 
cent of  the  accusation  made  against  him,  because 
the  jury  returned  a  verdict  of  not  guilty,  and  on 
that  account  he  is  entitled  to  full  indemnity  for 
his  losses,  viz  :  the  payment  of  his  costs  and 
expenses  as  matter  of  right.  I  deny  the  doc- 
trine. Chief  Justice  Marshall  never  designed 
to  establish  such  a  rule.  Suppose  Mr.  Botts, 
instead  of  informing  the  court  that  the  wit- 
nesses were  poor  and  unable  to  subsist  from  day 
to  day,  had  boldly  stated  that  they  were  in  good 
circumstances,  and  had  abundant  means  to  meet 
their  daily  necessities,  and  had  contended  that 
the  government  was  bound,  as  matter  of  right,  to 
pay  them,  does  your  honor  suppose  the  order 
would  have  been  made  for  their  payment  ?  And  if 
it  would  not  have  been  done  under  such  circum- 
stances, how  can  it  be  made  upon  the  state  of 
facts  disclosed  here  ?  I  submit,  therefore,  that 
an  order  made  forty-three  years  ago,  upon  a  point 
neither  debated  nor  contested,  and  which  has 
not  been  recognized  since  that  period,  so  far  as 
we  are  informed,  by  any  one  of  the  Circuit  or 
District  Courts  of  the  United  States,  cannot  be 
relied  upon  as  a  safe  precedent  upon  which  to 
make  the  extraordinary  decree  prayed  for  in  this 
case. 

But,  may  it  please  your  honor,  our  learned 
friend  has  taken  higher  ground,  and  places  him- 
self upon  the  Constitution  of  the  United  States. 
He  argues  that  that  instrument  generates  to  a 
defendant,  charged  with  a  criminal  offence,  com- 
pulsory process  to  bring  in  his  witnesses,  and 
that  that  includes  their  per  diem  payment. 
With  this  object,  he  quotes  the  sixth  article  of 
the  Amendments  to  the  Constitution  of  the 
United  States,  passed  by  Congress  on  the  4th  of 
March,  1789,  and  ratified  by  the  legislatures  of 
the  requisite  number  of  States.  The  clause  is 
in  these  words : 

"  In  all  criminal  prosecutions,  the  accused 
shall  enjoy  the  right  to  a  speedy  and  public 
trial,  by  an  impartial  jury  of  the  State  or  dis- 
trict wherein  the  crime  shall  have  been  com- 
mitted, which  district  shall  have  been  previously 
ascertained  by  law  ;  and  to  be  informed  of  the 
nature  and  cause  of  the  accusation  ;  to  be  con- 
fronted with  the  witnesses  against  him ;  to  have 
compulsory  process  for  obtaining  witnesses  in  his 
favour,  and  to  have  the  assistance  of  counsel  for 
his  defence.' 

This  clause  of  the  Constitution  does  prescribe 
that  the  defendant  shall  have  compulsory  process 
for  obtaining  witnesses  in  his  favour.  It  does 
not,  however,  speak  ot  the  payment  of  fees  to 


UNITED  STATES  V.  HANWAY. 


255 


•witnesses,  and  such  an  idea  is  not  included, 
within  the  words  of  the  article.  It  has  never 
been  determined  by  any  federal  court,  to  include 
the  payment  of  the  defendants  -witnesses,  and 
one  would  suppose,  that  if  it  did  include  so  im- 
portant a  right,  it  would  have  been  constantly 
claimed,  and  that  everywhere  the  books  would 
abound  with  cases  which  would  recognize  it  as 
unquestionable.  On  the  contrary,  no  decided 
case,  not  even  the  dictum  of  a  judge,  can  be 
quoted  to  sustain  the  ground  taken  by  my  learned 
friend.  Now,  in  opposition  to  his  view,  is  the 
fact  that  a  practice  has  prevailed  cotempora- 
neously  with  the  adoption  of  this  clause  in  the 
Constitution,  which  is  against  the  theory  set  up 
on  the  other  side.  'The  force  and  sanctity  of 
cotemporaneous  constructions  of  public  statutes 
are  things  of  every  day  familiarity  in  courts  of 
justice,  and  there  is  nothing  which  judges  hesi- 
tate more  to  disturb.  Indeed,  contemporaneous 
constructions  become  part  and  parcel  of  the 
public  statute,  upon  which  they  have  been  given. 
These  constructions  are  so  far  impressed  upon 
public  laws,  as  to  become,  as  it  were,  a  part  of 
them.  It  was,  to  cite  a  distinguished  precedent 
of  this  kind,  from  the  force  of  cotemporaneous 
constructions  of  the  Constitution  of  the  United 
States,  that  the  doctrine  of  the  constitutionality 
of  a  National  Bank  derived  the  chief  part  of  its 
strength.  If  the  legal  history  of  the  construc- 
tion of  statutes  were  gone  into,  the  instances 
would  be  found  almost  without  number,  whose 
constructions,  apparently  inconsistent  with  their 
letter  have  been  adhered  to,  from  a  due  regard  to 
the  sanctity  of  settled  interpretations,  upon 
which  contracts  had  been  predicted,  and  under 
which  rights  had  been  acquired. 

The  part  contraction  of  this  sixth  article  of 
the  Amendments  to  the  Constitution  of  the 
United  States,  has  been  adverse  to  the  interpre- 
tation put  upon  it  by  the  other  side.  The  prac- 
tice in  this  district,  and  in  every  district  of  the 
Union,  has  been,  not  to  pay  the  witnesses  brought 
by  a  defendant.  It  should  not  be  disturbed  now, 
unless  some  authoritative  decision  is  produced, 
which  so  operates  upon  the  judgment  of  your 
Honour,  as  to  make  a  change  of  practice  impera- 
tive. 

But,  the  same  practice  which  has  prevailed  in 
the  federal  courts,  exists  in  the  State  of  Penn- 
sylvania, and  in  other  States  whose  constitutions 
have  provisions  similar  to  that  found  in  the 
Amended  Articles  of  the  Constitution  of  the 
United  States.  In  none  of  those  States,  are  the 
witnesses  subpoenaed  by  a  defendant,  paid  from 
the  public  treasury,  except  in  some  special  cases 
under  statutory  enactments.  The  ninth  article 
of  the  Constitution  of  the  State  of  Pennsylvania, 
Section  IX.,  is  as  follows  : — 

"  In  all  criminal  prosecutions,  the  accused 
hath  a  right  to  be  heard  by  himself  and  counsel, 
to  demand  the  nature  and  cause  of  the  accusa- 
tion against  him  ;  to  meet  the  witnesses  face  to 
face  ;  to  have  compulsory  process  for  obtaining  wit- 
nesses in  his  favour ;  and  in  prosecutions  by  in- 
dictment or  information,  a  speedy  public  trial,  by 
an  impartial  jury  of  the  vicinage  ;  he  cannot  be 
compelled  to  give  evidence  against  himself,  nor 


can  he  be  deprived  of  his  life,  liberty,  or  pro- 
perty, unless  by  the  judgment  of  his  peers,  or 
the  law  of  the  land.' 

It  will  be  perceived  that  this  section  of  the 
Constitution  of  Pennsylvania,  gives  to  a  defend- 
ant in  a  criminal  case,  the  right  "  to  have  com- 
pulsory process  for  obtaining  witnesses  in  his  favour." 
They  are  the  identical  words  used  in  the  sixth 
article  of  the  Amendments  to  the  Constitution  ot 
the  United  States,  upon  which  my  friend  relies, 
and  yet  this  language  ne\er  was  construed  in 
any  court  in  Pennsylvania,  to  give  pay  to  the 

j  witnesses  produced  by  a  defendant,  out  of  either 
the  county  or  state  treasury.  The  county  never 
pays  the  fees  of  a  defendant's  witnesses  under  any 
circumstances  whatsoever.  How  comes  it  then, 
that  if  these  words,  occurring  in  the  Constitu- 
tion of  the  State,  give  to  a  defendant  a  right  to 
demand  that  the  fees  of  his  witnesses  shall  be 
taxed  and  paid,  in  the  same  manner  that  the 
witnesses  for  tne  Commonwealth  are  paid,  that 
not  one  instance  can  be  found  in  which  it  ever 
has  been  done  ?  If  then,  there  be  no  precedents 
whatever,  which  favour  this  new  construction 
proposed  to  be  put  upon  these  clauses  in  the 
Constitution  of  Pennsylvania  and  of  the  United 
States,  and  there  is  a  settled  and  uniform  prac- 
tice everywhere  prevailing  to  the  contrary,  ought 
it  to  be  disturbed  at  this  late  day,  to  recall  the 
supposed  equities  of  this  particular  case?  I 
submit,  with  all  due  respect  to  this  tribunal,  that 
it  would  be  a  dangerous  exercise  of  a  doubtful 
power,  to  undertake  to  disturb  this  practice  ; 
and  that  if  the  law  upon  this  subject  should  be 
changed,  the  appeal  should  be  made  to  Congress. 
It  transcends  the  authority  of  this  court  to  alter 
the  rule  ;  for  the  exercise  of  such  a  power  now 
would  be  an  act  of  legislation,  not  of  judicial 
construction 

I  would  here  remark  that  in  Pennsylvania, 
there  is  a  statute  which  provides  that  in  all  cases 
of  misdemeanors,  it  shall  be  competent  for  the 

j  petit  jury  who  try  the  cause,  in  case  they  acquit 

j  the  defendant,  to  determine  whether  the  county, 
the  defendant,  or  the  prosecutor  shall  pay  the 
costs.  It  has  frequently  happened,  that  under 
its  provisions  defendants  have  been  acquitted, 
and  the  county  directed  to  pay  the  costs.  Not- 
withstanding this  direction  by  the  jury,  and  the 
existence  of  a  printed  statute  giving  them  full 
control  over  the  costs,  the  courts  never  have  di- 
rected or  permitted  the  defendant's  witnesses  to 
be  paid  out  of  the  county  treasury.  How  much 
stronger  are  the  words  of  this  statute  than  the 
article  of  the  Constitution  already  quoted,  and 
yet  the  judges  have  uniformly  held,  that  the 
language  used,  could  not  be  construed  to  embrace 
the  payment  of  the  defendant's  witnesses.  How 
then  can  the  phraseology  of  the  sixth  article  of 
the  amendments  to  the  Constitution  of  the  United 
States  be  tortured  into  any  construction  which 
makes  it  obligatory  upon  the  court  to  order  that 
payment  ?  If  it  can  be,  your  honor  must  devise 
some  mode  of  recovering  not  yet  apprehended 
by  me,  before  you  can  bring  your  mind  to  any 
such  conclusion. 

But,  may  it  please  the  court,  if  there  was  for- 

1  merly  any  room  for  doubt  as  to  the  power  of  this 


255 


TREASON  CASES. 


court  over  the  costs  of  witnesses  produced  by 
a  defendant  in  criminal  cases,  none  can  exist 
any  longer.  The  whole  subject  is  now  placed  at 
rest  by  legislative  enactment,  and  there  can  be 
no  uncertainty  with  respect  to  it  hereafter.  I 
refer  to  the  act  of  Congress,  passed  August  8th, 
1846,  section  11.    It  provides  as  follows: 

"  That'whenever  any  indictment  shall  be  pend- 
ing in  any  court  of  the  United  States,  and  any 
defendant  thereto  shall  make  an  affidavit  setting 
forth  that  there  are  witnesses  whose  evidence  is 
material  to  his  defence,  and  that  he  cannot  safely 
go  to  trial  without  them,  what  he  expects  to 
prove  by  each  of  them,  that  they  are  within  the 
district  in  which  the  court  is  held,  or  within  one 
hundred  miles  of  the  place  of  trial,  and  that  he 
is  not  possessed  of  sufficient  means,  and  is  actu- 
ally unable  to  pay  the  fees  of  such  witnesses,  the 
court  in  term,  or  any  judge  thereof  in  vacation, 
may,  if  it  appear  proper  to  do  so,  order  that  such 
witnesses  be  subpoenaed,  if  found  within  the  limits 
aforesaid  ;  and  in  such  case,  the  costs  incurred 
by  such  process,  and  the  fees  of  such  witnesses, 
shall  be  paid  in  the  same  manner  that  similar 
costs  and  fees  are  paid  in  case  of  witnesses  sub- 
poenaed in  behalf  of  the  United  States." 

The  twelfth  section  of  this  act  provides,  that 
all  acts  and  parts  of  acts  inconsistent  with  its 
provisions  are  repealed.  Does  not  this  law  free 
the  whole  subject  from  any  further  difficulty,  and 
demonstrate  that  Congress  was  impressed  with 
the  belief,  that  the  couits  had  no  power  to  order 
the  witnesses  brought  by  a  defendant  in  a  crimi- 
nal case,  to  be  paid  out  of  the  national  treasury  ? 
If  such  an  authority  existed  before  the  passage 
of  this  law,  why  was  it  enacted  ?  What  occasion 
was  there  for  it?  Surely  none,  if,  independent 
of  its  enactments,  the  judges  had  full  control 
over  the  whole  subject  of  costs,  and  could,  at  any 
time,  direct  the  witnesses  who  attended  for  a  de- 
fendant to  be  paid  by  the  marshal.  In  that 
view  of  the  case  it  would  be  altogether  a  work  of 
supererogation,  attended  with  no  practical  good. 
I  infer  from  the  very  passage  of  this  statute  that  no 
such  power  as  that  contended  for  by  the  learned 
counsel  on  the  other  side,  was  possessed  by  the 
iudges,  and  that  it  was  necessary  that  legislation 
should  be  had  to  enable  this  boon  to  be  extended 
to  the  poor  and  unfortunate.  Its  benefits  are 
only  to  be  obtained  upon  certain  terms  and  con- 
ditions set  out  in  the  act,  and  they  are  pre- 
requisites which  must  be  complied  with,  before 
any  relief  can  be  obtained.  What  then  is  it, 
that  a  defendant  must  do  if  he  desires  to  obtain 
compulsory  process  to  procure  the  attendance 
of  his  witnesses  and  have  an  order  for  their 
taxation  and  payment  out  of  the  treasury  of 
the  United  States  ?  I  will  enumerate :  First, 
he  must  make  an  affidavit  in  which  he  shall  set 
forth  that  there  are  witnesses  whose  evidence  is 
material  to  his  defence,  and  that  he  cannot  go 
safely  to  trial  without  them.  Second,  he  must 
set  out  in  his  affidavit,  all  the  facts  he  expects 
to  prove  by  them.  Third,  he  must  state  that  the 
witnesses  whose  presence  he  requires,  are  within 
the  district  in  which  the  court  is  held,  or  within 
one  hundred  miles  thereof.  Fourth,  he  must 
swear  that  he  is  not  possessed  of  sufficient  means 


and  is  actually  unable  to  pay  the  fees  of  his  wit- 
nesses. On  all  these  things  being  complied  with, 
but  not  otherwise,  it  is  made  lawful  for  the  court 
to  do  what  ?  To  order  that  said  witnesses  be  sub- 
poenaed, if  found  under  the  designated  limits  "and 
that  the  costs  incurred  by  such  process,  and  the 
fees  of  such  witnesses,  shall  be  paid  in  the  same 
manner  that  similar  costs  and  fees  are  paid  in 
case  of  witnesses  subpoenaed  on  behalf  of  the 
United  States." 

Now,  may  it' please  the  court,  if  you  have  a 
general  power,  independent  of  this  law,  by  vir- 
tue of  your  mere  certificate,  to  direct  the  mar- 
shal to  pay  the  fees  of  witnesses  brought  into 
this  court  by  a  defendant  in  a  criminal  proceed- 
ing, why  did  Congress  pass  this  act  ?  •  They  must 
have  acted  upon  one  of  two  grounds  :  either  that 
no  power  existed  by  law  to  compel  the  govern- 
ment to  pay  for  the  attendance  of  a  defendant's 
witnesses,  or  else  they  must  have  taken  it  for 
granted,  that  the  authority  did  exist,  and  meant 
to  limit  and  qualify  its  exercise  for  the  future. 
Either  view  is  fatal  to  the  case  of  the  defence. 
This  act  of  Congress  meant  to  introduce  a  system 
that  should  enable  the  poor  and  friendless  to  de- 
fend themselves,  when  indicted  for  crime ;  and 
with  this  object,  the  government  provided  for 
their  necessities,  by  agreeing  to  pay  for  serving 
their  subpoenas  and  the  attendance  of  their  wit- 
nesses. In  this  respect,  the  United  States  has 
been  magnanimous  and  generous  to  an  extent 
much  beyond  what  has  been  exhibited  by  any 
other  nation  on  the  face  of  the  earth.  No  state  in 
this  Union  has  made  any  such  provision  for  the 
security  of  the  friendless  and  destitute,  when  as- 
sailed by  false  accusations,  and  it  is  a  statute 
which  will  always  reflect  honor  upon  the  heads 
and  hearts  of  the  men  who  projected  and  passed 
it. 

But,  sir,  is  this  great  statute  in  favor  of  human- 
ity to  be  represented  here  as  conferring  no  boon  ? 
Are  we  to  be  told,  that  the  power  it  professes  to 
give,  always  existed  in  the  courts  of  the  United 
States,  and  that  there  was  no  necessity  whatever 
for  the  intervention  of  Congress  in  the  matter  ? 
Then  show  us  where  it  was  ever  exercised  prior 
to  its  passage,  either  in  this  city  or  elsewhere, 
unless,  perhaps,  in  the  solitary  case  of  Aaron 
Burr?  There  the  late  Chief  Justice  of  the 
United  States  did  consent  to  direct  the  marshal 
to  pay  a  few  poor  and  needy  witnesses,  upon 
representation  being  made  to  him,  that  they 
could  not  subsist  from  day  to  day  unless  relief 
was  afforded  them.  Had  Castner  Hanway.or  his 
counsel,  while  the  trial  was  progressing,  inform- 
ed the  court  that  he  also  had  a  few  witnesses 
material  to  his  defence,  and  that  their  necessities 
were  such  that  they  could  not  subsist  from  day 
to  day,  unless  means  were  afforded  them  by  the 
marshal,  I  would  not  have  resisted  the  making  of 
an  order  by  the  court  for  their  maintainance,  but 
would  instantly  have  yielded  to  the  promptings 
of  humanity  and  justice.  But  I  never  can  consent 
that  it  shall  be  ruled,  without  opposition  from 
me,,  that  a  defendant  charged  by  the  United 
States  with  crime,  when  acquitted  by  the  verdict 
of  a  jury,  shall,  in  consequence  of  that  acquittal, 
and  as  a  matter  of  right,  be  entitled  to  an  order 


UNITED  STATES  V.  HANWAY. 


257 


from  the  court  for  the  payment  of  his  witnesses. 
I  am  bound  thus  plainly  to  speak  my  views  upon 
this  important  question,  because  I  feel  that  in 
resisting  this  motion,  I  am  in  the  path  of  public 
duty.  Justice  to  myself,  as  -well  as  my  obliga- 
tions to  the  government,  require  that  I  should 
strenuously  resist,  "what  I  consider  to  be  a  dan- 
gerous innovation  upon  the  settled  practice  of  all 
the  courts  of  the  United  States.  It  would  estab- 
lish a  precedent  of  a  pernicious  tendency,  con- 
travene the  language  and  spirit  of  the  act  of 
1846,  and  be  tantamount  to  giving  a  bounty  for 
the  commission  of  offences.  It  would  be  particu- 
larly so  in  this  case,  where  the  defendant  was 
acquitted  purely  and  wholly  upon  technical 
grounds.  Had  he  been  indicted  for  an  offence 
not  punishable  with  death,  no  intelligent  man 
can  doubt  but  that  a  prompt  verdict  of  guilty, 
would  have  been  returned  against  him.  I  do  not 
even  believe  that  the  jury  which  tried  Hanway, 
considered  him  innocent  of  the  particular  offence 
charged  against  him.  When  they  rendered  their 
verdict,  they  did  not  mean,  I  suppose,  to  be  un- 
derstood as  saying  so  ;  it  was  designed  simply  to 
imply  that  they  had  not  full  and  competent  testi- 
mony to  establish  his  guilt. 

Mr.  Read.  I  have  permitted  Mr.  Ashmead 
to  say  a  great  deal  without  interruption,  but  he 
has  no  right  to  reflect  upon  the  individual  ac- 
quitted. The  jury  came  into  court  at  the  close 
of  the  case,  with  a  verdict  of  not  guilty,  and 
they  stated  that  there  was  no  period  during  the 
trial,  in  which  they  would  not  have  acquitted  the 
defendant. 

Mr.  Ashmead.  1 1  may  be  somewhat  out  of 
order  in  alluding  to  these  matters,  but  Mr.  Read, 
adverted  to  these  topics  himself.  He  spoke  of 
the  defendant's  innocence,  his  sufferings  and  pri- 
vations, and  asked  for  the  payment  of  his  wit- 
nesses, on  the  ground  that  he  was  unjustly  per- 
secuted, and  had  been  ruined  by  the  expendi- 
tures necessarily  made  by  him  in  preparing  for 
his  defence. 

Judge  Kane.  The  court  has  only  to  say  this. 
The  verdict  of  not  guilty  by  the  jury,  is  an  ac- 
quittal absolute,  and  the  court  cannot  inquire 
into  the  considerations  which  have  led  to  it.  If 
the  law  was  with  the  defendant,  it  was  as  avail- 
able, as  effectual,  as  conclusive  for  him,  as  if  the 
evidence  had  been  with  him.  In  either  case,  his 
acquittal  has  the  same  effect. 

Mr.  Ashmead.  What  your  honor  has  remark- 
ed is  certainly  true.  I  would  not  have  alluded 
to  the  facts  given  in  evidence  against  Mr.  Han- 
way, had  they  not  been  alluded  to  and  dwelt 
upon,  by  my  distinguished  friend  upon  the  other 
side.  He  spoke  with  much  eloquence  ,of  the 
entire  innocence  of  the  defendant,  of  every 
charge  that  could  be  brought  against  him,  and 
represented  him  as  bankrupt  in  means,  and 
broken  up  in  his  business,  in  consequence  of  the 
institution  of  the  criminal  proceedings.  All  this 
I  presume,  was  done  to  satisfy  the  court,  that  if 
the  power  to  pay  his  witnesses  was  a  discretion- 
ary one,  to  be  exercised  upon  a  just  considera- 
tion of  the  circumstances  of  the  case,  that  there 
was  sufficient  in  them  to  induce  judicial  interfer- 
ence in  his  behalf.    I  have  found  no  fault  with 


the  course  of  argument  pursued  by  Mr.  Read, 
nor  do  I  mean  to  do  so.    He  has  a  right,  and  it 
is  his  duty,  to  press  into  his  case,  any  fact  that 
will  be  of  service  to  his  client.    I  commend  his 
zeal  in  doing  so,  and  cannot  but  admire  the  abili- 
ty with  which  it  has  been  done.    Rut,  surely,  I 
have  a  right  in  answering  these  allegations,  and 
replying  to  the  argument  made  in  favour  of  the 
rule,  to  show  that1  these  representations  are  not 
consistent  with  the  evidence  which  was  given  on 
j  the  trial,  but  that  the  facts  are  entirely  different, 
i  It  certainly  must  be  so,  unless  the  proposition 
j  contended  for  is,  that  the  order  to  pay  the  de- 
fendant's witnesses  is  matter  of  right,  and  does 
not  rest  at  all  within  the  discretion  of  the  court. 
If  this  be  the  doctrine,  then,  of  course,  the  evi- 
dence has  nothing  to  do  with  this  argument; 
and  although  Hanway  has  been  acquitted  of 
treason,  because-  the  facts  did  not  make  out  the 
technical  offence,  but  was  proved  to  have  been 
guilty  of  murder,  riot,  and  wilfully  obstructing 
the  process  of  the  United  States,  I  cannot  per- 
ceive that  it  will  avail  anything.   I  have  not  con- 
tended that  his  offence  was  treason  ;  his  honor, 
[  Judge  Grier,  ruled  that  it  was  not,  and  I  am  not 
here  to  find  fault  with  the  ruling  of  the  court. 
I  have  agreed  that  if  he  had  been  put  upon  trial 
for  a  less  offence — one  not  capital — I  would  have 
gone  to  the  jury  with  an  almost  moral  certainty 
of  his  conviction.    With  such  impressions  upon 
my  mind,  I  do  not  desire  an  order  to  be  made  for 
:  the  payment  of  his  witnesses  out  of  the  public 
'  treasurj7,  because  he  does  not  merit  it.    It  is 
!  enough  that  he  has  escaped  all  punishment  for 
j  his  participation  in  the  outrages  at  Christiana  ; 
i  and  shall  he,  in  addition,  have  the  order  prayed 
I  for,  which  would  be  a  sort  of  certificate  of  merit 
to  parade  before  the  country?    It  is  bad  enough 
that  he  has  an  extensive  immunity  for  his  offen- 
ces, but  it  would  be  much  worse  if  the  commu- 
nity should  understand  that  this  mark  of  appro- 
bation was  given  to  him  by  the  court  as  an 
indemnity  for  his  losses. 

Mr.  Read.  If  we  are  to  go  over  this  whole 
ground,  I  will  make  my  speech  again.  It  is  an 
attempt  to  attach  this  man  when  he  is  away,  and 
it  is  unwarrantable  on  the  part  of  the  United 
States,  because  they  have  no  right  to  persecute 
any  man. 

;  Judge  Kane.  The  question  ,  before  me  is  a 
simple  question  of  dry  law.  The  party  for  whom 
the  application  is  made,  may  be  John  Doe,  or 
any  one  else.  The  circumstances  of  his  acquittal 
are  entirely  unknown  to  me.  I  have  merely  the 
record  of  acquittal,  and  the  question  is,  shall  I 
refer  to  the  clerk  for  taxation  the  bills  presented 
to  me  on  behalf  of  the  defendant.  All  that  I  can 
say  to  the  counsel  on  both  sides  is,  that  I  have 
no  feeling  in  the  matter;  neither  shall  I  regard 
any  consideration  whatever  but  the  simple  ques- 
tion of  taxation,  and  whether  I  shall  refer  it  to 
the  clerk  for  that  purpose. 

Mr.  Ashmead.,  I  know  that  your  honour  has 
no  feeling  in  this  case,  and  that  you  will  act  with 
the  strictest  impartiality,  and  do  what  you  be- 
lieve to  be  right.  Rut  permit  me  to  remark, 
that  you  have  not  merely  the  verdict  which  was 
rendered  on  the  trial  of  Hanway,  but  you  have 


258 


TREASON  CASES. 


in  addition  the  testimony  which  was  given  before 
you. 

Mr.  Bead.  If  this  is  the  course  of  argu- 
ment— 

Judge  Kane.  The  Court  will  ask  the  counsel 
a  question.  "Do  I  understand  the  counsel  to 
make  the  application  subject  to  the  discretion  of 
the  court,  or  to  the  court  as  a  matter  of  right  ?" 

Mr.  Read.    As  a  matter  of  right. 

Judge  Kane.  Then  I  understand  it  to  be,  that 
as  of  right  he  is  entitled  to  receive  an  order  from 
the  court,  directing  the  marshal  to  pay  to  the 
witnesses  who  were  subpoenaed  and  in  attendance 
their  bills,  provided  it  be  found  to  the  satisfac- 
tion of  the  taxing  officer,  or  the  court,  that  their 
evidence  was  material.  I  understand  the  mate- 
riality of  the  witnesses  was  conceded  in  Burr's 
case. 

Mr.  Ashme  ad.  The  answer  given  by  Mr.  Read 
to  your  honour,  very  materially  lessens  my  duty, 
because  it  has  brought  down  the  inquiry  to  a 
mere  question  of  law.  His  allegation  is,  that 
where  a  verdict  of  acquittal  is  rendered  in  a 
criminal  case,  that  the  defendant  is  entitled  to 
have  his  witnesses  paid  by  the  Marshal,  as  matter 
of  right.  There  is  no  such  law;  and  it  is,  perhaps, 
the  first  time  in  the  history  of  the  country,  that 
such  a  position  has  been  taken  by  any  counsel.  It 
cannot  be  law — it  is  not  law,  and  has  never  been 
recognized  as  such  by  any  court  of  the  United 
States.  It  is  wholly  without  precedent,  so  far 
as  judicial  decisions  are  concerned;  and  it  is 
against  the  practice  of  all  the  courts  of  the  United 
States,  and  of  every  State  in  this  Union.  If  all 
this  practice  is  to  be  overturned,  and  a  new  and 
dangerous  innovation  introduced,  let  us  have 
some  reason  or  authority  for  making  the  change. 
If  there  be  no  common  law  doctrine  to  be  in- 
voked in  its  support,  and  no  statute  of  the  United 
States  which  recognizes  it  as  a  principle,  whence 
is  the  court  to  obtain  the  power  to  do  what  is 
asked  ?  Castner  Hanway  has  had  his  trial ;  his 
witnesses  were  all  in  attendance ;  they  were  ex- 
amined in  court,  and  he  has  been  acquitted, 
whether  upon  the  merits  of  his  case  I  will  not 
stop  to  inquire.  He  has  had  all  the  advantages 
which  the  constitution  and  laws  give  to  any  de- 
fendant similarly  circumstanced,  to  prepare  for 
his  defence.  Shall  he  now  transfer  the  claim 
which  his  witnesses  have  for  compensation 
against  him  to  the  treasury  of  the  United  States? 
This  is  the  question  the  court  is  called  on  to  de- 
termine. If  it  be  ruled  in  favour  of  Hanway,  it 
must  be  ruled  in  the  same  way  hereafter  in  the 
case  of  every  defendant  who  shall  be  acquitted 
by  the  verdict  of  a  jury.  The  consequences  of 
such  a  decision  it  is  impossible  now  to  foresee ; 
and  I  therefore  respectfully  ask  your  honour  to 
pause  and  ponder  upon  the  question  before  you 
make  it  the  law  of  this  court. 

Mr.  Read.  I  hardly  expected  my  learned 
friend  to  have  represented  the  State  of  Mary- 
land here  ;  and,  therefore,  I  do  not  intend  saying 
any  thing  more  about  it.  I  am  sorry  he  should 
entertain  these  feelings  and  express  them  in  a 
court  of  justice.  The  case  has  been  decided  and 
Castner  Hanway  has  been  acquitted,  and  your 
honour  looks  upon  the  record  -as  it  is,  and  I  will 


I  not  undertake  to  make  any  observations  irrele- 
vant to  the  question  now  before  you. 

Now,  it  is  extraordinary  that  after  all  the  re- 
search of  the  learned  district  attorney,  he  has 
not  been  able  to  find  a  single  decision  on  his  part 
against  the  payment  of  these  witnesses.  Now  I 
defy  him  to  produce  a  single  decision  of  any  in 
the  courts  of  the  United  States,  where  the  ques- 
tion has  been  decided  against  the  defendant, 
where  the  application  has  been  made.  I  have 
the  only  case,  except  in  one  decided  not  to  be 
treason,  in  the  year  1808,  in  the  District  of  Ver- 
mont, and  we  have  no  report  of  it  at  all.  I  have 
the  only  case,  with  the  exception  of  Freas's  case, 
which  was  a  conviction,  and  in  that  there  is  a 
direct  precedent  in  favour  of  these  witnesses,  and 
that  direct  precedent  the  attorney  for  the  United 
States  wishes  you  to  disregard,  because  it  was 
decided  by  Chief  Justice  Marshall.  I  take  it,  that 
when  he  can  find  a  man  of  the  same  legal  talents 
and  acquirements,  to  make  such  a  solemn  de- 
cision as  that,  then  I  will  give  up  this  authority 
as  nothing,  but  not  before.  After  solemn  argu- 
ment, and  with  a  full  knowledge  of  the  facts, 
your  honour  is  asked  to  consider  it  nothing,  be- 
cause no  treason  case  has  occurred  since  that 
period. 

This  is  a  capital  case,  and  I  defy  the  attorney  for 
the  United  States  to  point  to  a  single  case  where 
a  contrary  doctrine  has  been  established.  I  think 
I  have  the  advantage  of  the  argument.  I  have 
a  decision  which  has  never  been  overruled,  and 
my  learned  friend  has  no  decision  to  the  contrary. 
Now  with  regard  to  the  question  of  allowance, 
are  you  to  be  frightened  by  a  sort  of  boog-a-boo, 
because  the  District  Attorney  has  not  allowed 
the  costs — for  that  has  nothing  to  do  with  the 
decision  your  honour  may  make  now. 

The  question  is  whether  this  party,  who  has 
been  acquitted,  is  to  be  turned  into  the  world 
worse  than  when  he  came  here,  or  whether  he  is  to 
be  branded,  and  whether  this  decision  of  a  Chief 
Justice  of  the  United  States  is  to  be  disregarded, 
upon  the  ground  that  no  overruling  decision  has 
been  found  ?  There  is  no  such  decision  of  any 
court,  and  when  the  District  Attorney  can  pro- 
duce one  that  is  contradictory,  I  shall  be  satisfied, 
but,  until  he  does,  there  is  no  other  decision 
except  that.  I  have  heard  the  opinions  of  the 
Chief  Justice  disregarded  because  they  are  con- 
tradictory to  the  opinions  of  my  learned  oppo- 
nents, and  not  those  most  liked  by  those  engaged 
with  him.  I  am  confident  as  a  private  individual 
the  District  Attorney  would  be  glad  to  allow  this 
application,  and  I  have  no  doubt  he  thinks  it  his 
duty  as  an  officer  to  oppose  this  application. 

1  take  it  that  you  -have  nothing  to  do  with  the 
State  of  Pennsylvania.  The  law  of  Pennsylvania 
in  1789  was  that  if  a  person  were  acquitted  you 
were  to  pay  the  prosecution. 

Mr.  Ashmead.    It  was  by  statute. 

Mr.  Read.  No,  Sir.  It  was  the  common  law 
of  the  land. 

Mr.  Ashmead.  That  is  the  English  common 
law. 

Mr.  Read.  It  is  not  the  English  common  law, 
it  was  the  common  law  of  Pennsylvania,  and  it 
requires  positive  law  to  remove  it ;  and  I  have 


UNITED  STATES  V.  HANWAY. 


259 


never  beard  where  the  United  States  ever  obliged 
the  acquitted  party  to  pay  the  expenses  of  the 
prosecution.  And,  therefore,  the  law  of  Penn- 
sylvania fails  my  learned  friend. 

If  it  were  not  for  the  passage  of  the  bill  in 
1790,  we  should  have  had  to  pay  $1800  to  sup- 
port the  testimony  of  Kline,  and  that  would  have 
been  the  benefit  of  an  acquittal ;  and  he  might 
as  well  have  staid  in  the  penitentiary  for  one 
offence  as  well  as  the  other,  and  this  bill  was 
passed  upon  the  principles  of  humanity  and  jus- 
tice, as  broad  as  the  Constitution  itself.  The 
Chief  Justice  of  the  United  States  has  disre- 
garded all  State  authority,  and  he  has  gone  upon 
the  Constitution,  and  upon  that  basis  alone  has 
he  made  this  opinion. 

Now  with  regard  to  the  State  of  Massachusetts. 
I  do  not  know  that  it  has  any  such  provision  as 
ours.  *  *  *  We  have  various  provisons  that 
have  been  disregarded ;  and  is  it  to  be  disre- 
garded because  the  laws  of  Pennsylvania  happen 
to  be  different  from  those  of  the  United  States  ? 
It  was  passed  in  1790,  I  think  in  the  act  of  the 
26th  of  March.  (Reads.) 

Who  ever  heard  that  that  was  the  law  of  the 
United  States  ? 

And  yet  this  Pennsylvania  authority  is  author- 
ity that  the  acquitted  in  1790  of  treason  was  to 
be  punished  with  the  costs  of  the  prosecution. 
It  is  the  first  time  I  have  listened  to  an  argument 
of  that  kind.  I  say,  therefore,  that  the  State  of 
Pennsylvania  and  its  laws  have  no  application, 
and  if  that  be  the  practice  in  the  city  and  county 
of  Philadelphia,  or  in  the  State  of  Pennsylvania, 
it  is  different  to  the  practice  in  any  other  State. 
It  is  different  to  a  peculiar  function  of  the  county 
commissioners  who  never  pay  any  thing,  I 
believe,  except  what  they  cannot  help.  And  it 
is  a  little  like  one  of  the  officers  of  the  govern- 
ment of  whom  Judge  Grier  spoke,  and  who  never 
paid  anything  unless  they  were  obliged  to  do  so. 
We  have  nothing  to  do  with  the  State  of  Pennsyl- 
vania, but  with  the  Constitution  of  the  United 
States,  and  the  laws  passed  under  it. 

Now  the  question  arises — is  the  act  of  1846,  a 
repeal  of  the  act  of  1842  ?  Certainly  not.  Clearly 
not.  Is  it  a  repeal  of  the  crimes'  act?  Certainly 
not.  Is  it  a  repeal  of  the  compulsory  process,  or 
a  repeal  of  the  amendment  which  gives  the  com- 
pulsory process?  Certainly  not.  Now  under  these 
circumstances,  what  is  the  difference  ?  Is  the 
United  States  to  be  put  in  a  different  point  of 
view  from  that  of  Massachussetts  ? 

I  will  refer  your  honour  to  the  revised  statute 
of  Massachussetts,  when  you  will  see  there  is  an 
express  provision  by  the  laws  of  the  land  for  the 
payment  of  witnesses  in  capital  cases.  In  the 
revised  statute  of  Massachussetts,  page  759,  you 
will  find  an  express  positive  provision,  which  I 
think  is  taken  from  the  case  in  Burr's  trial. 
(Reads.) 

Then  having  stripped  off  all  this  common  law 
here,  and  the  law  of  Pennsylvania,  which  had 
nothing  to  do  with  it,  we  come  down  to  what  is 
the  real  construction  of  the  constitution  of  the 
United  States  and  the  laws  under  it. 

Now  supposing  that  this  authority,  was  autho- 
rity in  1807.    What  was  it  authority  in  ?  It  was 


not  an  authority  merely  that  poor  witnesses 
should  be  paid  during  trial,  but  it  was  pursued 
upon  the  ground  that  the  witnesses  for  the  defen- 
dant were  to  be  paid  at  that  stage  of  the  pro- 
secution and  under  those  circumstances,  and 
before  it  was  known  whether  they  were  material, 
and  whether  they  were  to  be  executed  or  not. 
And  it  was  said  by  Mr.  Hay,  that  the  law  con- 
templated they  should  be  paid.  Who  ?  Why  the 
witnesses  for  the  defendant.  Because  therefore 
as  in  a  case  where  a  party  is  entitled  to  compul- 
sory process,  he  is  also  entitled  to  have  his  wit- 
nesses paid  undoubtedly  after  they  have  given 
their  evidence. 

What  is  the  next  .  stage  ?  Supposing  that  to 
be  the  law,  and  I  do  not  intend  to  enlarge 
upon  it.  There  is  an  act  passed  of  an  especial 
character,  which  is  intended  for  persons  who  are 
too  poor  to  pay  at  all.  Now  we  know  that  we 
are  entitled  to  compulsory  process,  and  to  sub- 
poenas and  without  any  payment,  and  nobody 
denies  it.  There  is  no  doubt  about  that.  And 
the  only  effect  is  that  in  certain  cases,  and  upon 
certain  proof  while  the  indictment  is  pending  you 
may  get  witnesses  within  a  certain  distance,  and 
have  them  paid  at  that  time.  But  is  there  a 
word  about  when  a  party  has  had  his  witnesses 
present  and  they  have  been  examined  and  found 
material,  and  is  acquitted,  that  his  witnesses  are 
not  to  be  paid  ?  Is  there  anything  in  that  law 
to  the  contrary  ?  Not  one  single  word.  It  do'nt 
affect  it  in  any  way.  It  is  a  direct  provision  in- 
tended for  a  special  purpose,  and  that  only.  Now 
this  is  a  case  which  it  does  not  reach.  .  .  . 
By  the  amendment  of  the  constitution  and  by  the 
crimes'  act,  we .  are  entitled  to  compulsory  pro- 
cess, before  the  indictment  is  found  at  all. — We  are 
entitled  to  have  our  witnesses  here.  That  is  the 
decision  in  Wallace  and  Burr.  What  is  the  con- 
dition in  an  individual  thus?*  That  he  has  a 
right  to  that  process  entirely  independent  of  that 
act,  and  they  have  no  power  to  take  it  away 
Well,  now,  does  that  apply  to  this  case  at  all  ?  .  . 
Suppose  the  witnesses  happens  to  reside  more 
than  100  miles  away?  are  we  not  entitled  like 
the  United  States  to  compulsory  process,  and 
allowed  to  send  into  a  foreign  State  ?  They  can 
send  the  subpoena  more  than  100  miles  off-  Well 
if  the  United  States  could  send  to  New  Orleans, 
had  not  Colonel  Burr,  the  power  to  send  for  wit- 
nesses for  an  express  purpose,  namely,  for  the 
purpose  of  proving  his  innocence  ;  and  have  we 
not  the  same  right  to  send  into  a  foreign  State  ? 
And  yet  that  act  will  not  apply  at  all.  It  is 
therefore  an  act  of  a  peculiar  kind,  and  intended 
for  a  peculiar  purpose,  and  to  be  exercised  in 
peculiar  cases,  and  only  to  be  used,  except  in  a 
case  where  a  man  is  too  poor  to  have  any  counsel, 
but  the  courts  themselves.  But  what  is  asked 
but  that  the  counsel  shall  have  a  full  display  of 
the  whole  case  before  him,  in  order  to  present  it 
to  the  court  and  jury.  It  does  not  interfere  with 
the  crimes  act  of  1790,  nor  with  the  6th  article 
of  the  amendment.  Well  now  how  is  it  possible 
that  the  defendant  can  be  placed  upon  an  equality 
with  the  United  States,  except  that  his  witnesses 
shall  be  paid  exactly  as  the  United  States  wit- 
nesses are  paid  'i  That  is  the  question  which  waa 


260 


TREASON  CASES. 


submitted  to  the  Chief  Justice  Marshall,  and 
which  he  decided, — and  that  is  the  question  we  beg 
leave  to  submit  to  you,  stripped  of  all  the  argu- 
ments which  have  occupied  the  time  and  attention 
of  your  honor.  Let  us  therefore  submit  this  ques- 
tion without  taking  up  any  further  of  your  pre- 
cious time.  That  under  the  circumstances  of  this 
ease — the  party  being  acquitted  in  the  eye  of  the 
law,  I  will  make  no  other  observation  than  that 
having  been  acquitted  according  to  the  laws  and 
constitution  of  the  United  States,  and  the  only 
decision  of  a  competent  tribunal  is  that  before  us 
and  made  upon  solemn  affirmation, — we  ask  you 
that  the  witnesses  shall  be  paid  in  the  manner  as 
first  stated  it  should  be  done  in  this  case. 


OPINION  OP  JUDGE  KANE. 

The  sixth  article  of  amendments  of  the  Con- 
etitution  provides  that  in  all  criminal  prosecu- 
tions, the  accused  shall  have  compulsory  process 
for  obtaining  witnesses  in  his  favour. 

If  I  found  it  necessary  to  decide  what  was  the 
proper  import  of  that  provision,  I  think  I  should 
hold  without  hesitation,  that  it  included  the  right 
of  an  accused  person,  not  merely  to  the  process 
of  the  Court,  but  to  the  service  of  that  process, 
and  to  every  aid  incidentally  connected  with  it, 
which  might  be  necessary  in  order  to  make 
his  right  to  the  testimony  of  the  witnesses 
available  for  the  purpose  of  his  defence.  I 
should  not  hesitate  as  at  present  advanced,  to 
instruct  the  marshal,  where  the  case  properly 
arose  under  that  provision  of  the  Constitution, 
to  bring  the  witnesses,  if  necessitous,  to  the  place 
of  trial,  and  to  support  them  during  the  trial  at 
the  public  charge.  And  I  understand  this .  to 
have  been  the  spirit  of  the  decision  of  Chief 
Justice  Marshall  in  Burr's  case.  The  witnesses 
there  were  represented  to  be  poor,  and  unable  to 
subsist  without  aid  from  the  Court — and  it  was 
admitted  that  they  were  material  for  the  defence. 
I  suppose  it  was  under  a  liberal,  and  just  inter- 
pretation of  this  constitutional  provision  that  the 
Chief  Justice  felt  himself  authorized  to  direct 
payment  to  these  witnesses  of  their  allowance. 

The  act  of  1846  I  regard  as  merely  a  legisla- 
tive affirmation  of  the  principle  which  was  recog- 
nized by  Chief  Justice  Marshall  in  Burr's  case — 
that  principle  the  same  which  I  should  deduce 
from  the  article  of  the  Constitution — that  the 
defendent  should  have  available  process,  in  a 
word,  access  to  the  testimony  of  witnesses  for 
his  defence. 

But  it  seems  to  me  that  neither  the  provision 
of  the  Constitution,  nor  the  act  of  '46,  nor  the 
language  of  Chief  Justice  Marshall  can  go 
beyond  this. 

And  it  seems  to  me,  too,  that  the  act  of  Con- 
gress goes  to  this  full  extent.  It  provides,  that 
an  accused  person  shall  have  what  I  have  sup- 
posed it  was  the  intent  of  the  framers  of  the 
Constitution  to  guarantee.  It  makes  the  three 
conditions.     First,  that  the  subject  matter  to 


which  the  evidence  of  the  witness  would  go, 
shall  be  relevant  to  the  issue.  Next,  that  it  is 
important  that  that  matter  be  proved,  for  it  is 
quite  possible  that  the  subject  matter  in  regard 
to  which  it  is  proposed  to  examine  a  witness, 
may  be  relevant  to  the  issue,  and  therefore  in 
common  legal  parlance — material, — and  yet  it 
may  not  be  necessary  that  witnesses  should  be 
called  to  prove  it  before  the  Court. 

It  may  be  waived  by  the  United  States — the 
fact  may  be  conceded,  which  the  witness  is  called 
to  prove — and  in  such  case  there  is  no  necessity 
for  the  subpoena  to  be  issued.  And  I  suppose  it 
is  for  the  purpose  of  enabling  the  attorney  of  the 
United  States  to  declare  in  his  place  whether  the 
point  is  one  to  be  raised  by  him  or  controverted 
by  him,  that  the  Court  is  authorized  to  enquire 
what  is  the  particular -matter  which  it  is  pro- 
posed to  prove  by  the  witness  for  whom  process 
is  asked.  We  have  in  our  humbler  proceedings 
in  this  Court  frequently  and  constantly  cases 
that  are  closely  analogous. 

We  permit  a  commission  to  issue  in  the  Dis- 
trict Court,  at  any  time  when  either  party  applies 
for  it ;  but  it  does  not  stay  proceedings,  unless 
the  party  applying  for  it  make  affidavit,  declar- 
ing (in  his  affidavit)  what  it  is  the  witness  is 
expected  to  prove,  and  it  is  competent  then  to  the 
other  party  by  admitting  the  fact  so  proposed  to 
be  proved  to  relieve  himself  altogether  from  the 
stay  of  proceedings. 

In  such  a  case,  when  the  witness  is  necessi- 
tous, and  where  the  subject  matter  in  regard  to 
which  it  is  proposed  to  examine  him  is  relevant 
to  the  issue,  and  relates  to  a  point  in  controversy, 
the  act  of  Congress  of  1846,  authorizes  the  Court 
to  give  full  relief,  and  not  merely  to  issue  the 
subpoena  and  to  direct  its  service,  but  having 
brought  the  witnesses  here  to  place  them  under 
recognizance  so  as  to  secure  their  attendance  at 
the  time  of  trial. 

In  this  manner  the  act  enables  us  to  do  all  that 
I  understand  Chief  Justice  Tilghman  to  have 
contemplated,  when  he  spoke  of  the  propriety  of 
the  defendant  being  put  upon  the  same  footing 
in  all  respects  with  the  prosecution. 

I  do  not  understand  that  the  case  before  me  is 
the  case  provided  for  by  the  law.  The  circum- 
stances in  fact  negative  one  essential  element  of 
the  case  : — they  negative  the  necessity.  The 
defendant  is  entitled  to  process.  He  is  entitled 
to  the  service  of  process.  He  is  entitled  to  the 
support  of  his  witnesses,  if  there  be  necessity, 
if  those  steps  are  necessary,  to  enable  him  to 
bring  his  evidence  before  the  jury,  to  secure  his 
constitutional  and  legal  rights.  But  there  'has 
been  no  necessity  here.  His  witnesses  have  been 
in  attendance — they  have  been  examined — he 
has  had  every  benefit  that  he  could  have  antici- 
pated. The  case  of  necessity  for  the  furtherance 
of  justice  and  the  security  of  his  rights  has  not 
occurred. 

It  seems  to  me  that  if  the  claims  now  made 
were  to  be  admitted,  we  might  be  called  on  to 
recognize  an  analogous  case  to  it,  that  of  a  defend- 
ant who  under  the  game  clause  of  the  Constitution 
should  ask  us  for  the  costs  of  process  to  compel 


UNITED  STATES  V.  HAXWAY. 


261 


the  attendance  of  his  witnesses,  when  in  point  of 
fact  his  witnesses  had  attended  without  such 
process. 

There  was  here  no  necessitous  witness  pre- 
vented by  his  necessities  from  attending  for  the 
defence,  as  in  the  case  supposed  there  was  no 
need  of  process. 

'  I  do  not  indeed  understand  that  the  motion 
before  the  Court  can  be  regarded  as  an  applica- 


tion from  the  defendant.  He  is  no  longer  in 
Court.  His  rights  have  been  secured  to  him. 
It  is  virtually — I  speak  according  to  the  letter — 
it  is  virtually  the  application  of  witnesses,  who 
have  been  in  attendance  here,  to  have  their  bills 
taxed. ' 

I  find  no  warrant  in  any  act  of  Congress,  or  in 
any  precedent  for  such  a  taxation.  I  must 
therefore  dismiss  the  motion. 


APPENDIX. 


THE  ACT  OF  1793. 

An  act  respecting  fugitives  from  justice  and 
persons  escaping  from  the  service  of  their 

MASTERS. 

Section  1.  Be  it  enacted  by  the  Senate  and  House 
of  Representatives  of  the  United  States  of  America  in 
Congress  assembled.  That  whenever  the  executive 
authority  of  any  State  in  the  Union,  or  of  either  of 
the  territories  north  west  or  south  of  the  river  Ohio, 
shall  demand  any  person  as  a  fugitive  from  justice, 
of  the  executive  authority  of  any  such  State  or  Ter- 
ritory to  which  such  person  shall  have  fled,  and 
shall,  moreover,  produce  the  copy  of  an  indictment 
found,  or  an  affidavit  made,  before  a  magistrate  of 
any  State  or  Territory  as  aforesaid,  charging  the  per- 
son so  demanded,  with  having  committed  treason, 
felony,  or  other  crime,  certified  as  authentic  by  the 
governor  or  chief  magistrate  of  the  State  or  Terri- 
tory from  whence  the  person  so  charged  fled;  it 
shall  be  the  duty  of  the  executive  authority  of  the 
State  or  Territory  to  which  such  person  shall  have 
fled,  to  cause  him  or  her  to  be  arrested  and  secured, 
and  notice  of  the  arrest  to  be  given  to  the  executive 
authority  making  such  demand,  or  to  the  agent  of 
such  authority,  appointed  to  receive  the  fugitive, 
and  to  cause  the  fugitive  to  be  delivered  to  such 
agent  when  he  shall  appear.  But  if  no  such  agent 
shall  appear  within  six  months  from  the  time  of  the 
arrest,  the  prisoner  may  be  discharged.  And  all 
costs  or  expenses,  incurred  in  the  apprehending, 
securing,  and  transmitting  such  fugitive,  to  the 
State  or  Territory  making  such  demand,  shall  be 
paid  by  such  State  or  Territory. 

Sect.  2.  And  be  it  further  enacted,  &c.  That 
any  agent,  appointed  as  aforesaid,  who  shall  receive 
the  fugitive  into  his  custody,  shall  be  empowered  to 
transport  him  or  her,  to  the  State*  or  Territory  from 
which  he  or  she  shall  have  fled.  And  if  any  person 
or  persons  shall,  by  force,  set  at  liberty,  or  rescue 
the  fugitive  from  such  agent  while  transporting  as 
aforesaid,  the  person  or  persons  so  offending,  shall, 
on  conviction,  be  fined  not  exceeding  five  hundred 
dollars,  and  be  imprisoned  not  exceeding  one  year. 

Sect.  3.  And  be  it  further  enacted,  &c.  That 
when  a  person  held  to  labor  in  any  of  the  United 
States,  or  in  either  of  the  Territories  on  the  north- 
west or  south  of  the  river  Ohio,  under  the  laws 
thereof,  shall  escape  into  any  other  of  the  said 
States  or  Territory,  the  person  to  whom  such  labor 
or  service  may  be  due,  his  agent  or  attorney,  is 
hereby  empowered  to  seize  or  arrest  such  fugitive 
from  labor,  and  to  take  him  or  her  before  any  judge 
of  the  Circuit  or  District  Courts  of  the  United  States, 


residing  or  being  within  the  State,  or  before  any 
magistrate  of  a  county,  city,  or  town  corporate, 
wherein  such  seizure  or  arrest  shall  be  made,  and 
upon  proof,  to  the  satisfaction  of  such  judge  or  ma- 
gistrate, either  by  oral  testimony,  or  affidavit  taken 
before,  and  certified  by  a  magistrate  of  any  such 
State  or  Territory,  that  the  person  so  seized  or  ar- 
rested, doth,  under  the  laws  of  the  State  or  Terri- 
tory from  which  he  or  she  fled,  owe  service  or  labor 
to  the  person  claiming  him  or  her ;  it  shall  be  the 
duty  of  such  judge  or  magistrate,  to  give  a  certifi- 
cate thereof  to  such  claimant,  his  agent  or  attorney, 
which  shall  be  sufficient  warrant  for  removing  the 
said  fugitive  from  labor,  to  the  State  or  Territory 
from  which  he  or  she  fled. 

Sect.  4.  And  be  it  further  enacted,  &c.  That 
any  person  who  shall  knowingly  and  willingly  ob- 
struct or  hinder  such  claimant,  his  agent  or  attorney, 
in  so  seizing  or  arresting  such  fugitive  from  labor, 
or  shall  rescue  such  fugitive  from  such  claimant,  his 
agent  or  attorney,  when  so  arrested,  pursuant  to  the 
authority  herein  given  or  declared ;  or  shall  harbor 
or  conceal  such  person,  after  notice  that  he  or  she 
was  a  fugitive  from  labor,  as  aforesaid,  shall,  for 
either  of  the  said  offences,  forfeit  and  pay  the  sum 
of  five  hundred  dollars,  which  penalty  may  be  reco- 
vered by,  and  for  the  benefit  of  such  claimant,  by 
action  of  debt,  in  any  Court  proper  to  try  the  same  ; 
saving  moreover,  to  the  person  claiming  such  labor 
or  service,  his  right  of  action  for,  or  on  account  of, 
the  said  injuries,  or  either  of  them.  (Approved 
February  12,  1793.) 


263 


On  the  18th  September,  1850,  the  following-  law, 
known  as  the  "  Fugitive  Slave  Law  of  1850," 
was  passed  by  Congress. 

AN  ACT 

to  amend,  and  supplementary  to,  the  act  enti- 
tled "AN  ACT  RESPECTING  FUGITIVES  FROM  JUS- 
TICE, AND  PERSONS  ESCAPING  FROM  THE  SERVICE 
OF  THEIR  MASTERS,"  APPROVED  FEB.  TWELFTH, 
ONE  THOUSAND  SEVEN  HUNDRED  AND  NINETY- 
THREE. 

Sec.  1.  Be  it  enacted  by  the  Senate  and  Rouse  of 
Representatives  of  the  United  States  of  America  in 
Congress  assembled,  That  the  persons  who  have  been, 
or  may  hereafter  be,  appointed  commissioners,  in 
virtue  of  any  act  of  Congress  by  the  circuit  courts 
of  the  United  States,  and  who,  in  consequence  of 
such  appointment,  are  authorized  to  exercise  the 
powers  that  any  justice  of  the  peace,  or  other  ma- 
gistrate of  any  of  the  United  States  may  exercise 


264 


APPENDIX. 


in  respect  to  offenders  for  any  crime  or  offence 
against  the  United  States,  by  arresting,  imprison- 
ing, or  bailing  the  same  under  and  by  virtue  of  the 
thirty-third  section  of  the  act  of  the  twenty-fourth 
of  September,  seventeen  hundred  and  eighty-nine, 
entitled  "An  act  to  establish  the  judicial  courts  of 
the  United  States,"  shall  be,  and  are  hereby  author- 
ized and  required  to  exercise  and  discharge  all  the 
powers  and  duties  conferred  by  this  act. 

Sec.  2.  And  be  it  further,  enacted,  That  the  su- 
perior court  of  each  organized  Territory  of  the 
United  States  shall  have  the  same  power  to  appoint 
commissioners  to  take  acknowledgments  of  bail  and 
affidavits  and  to  take  depositions  of  witnesses  in 
civil  causes  which  is  now  possessed  by  the  circuit 
court  of  the  United  States;  and  all  commissioners 
who  shall  hereafter  be  appointed  for  such  purposes 
by  the  superior  court  of  any  organized  Territory  of 
the  United  States,  shall  possess  all  the  powers,  and 
exercise  all  the  duties  conferred  by  law  upon  the 
commissioners  appointed  by  the  circuit  courts  of  the 
United  States  for  similar  purposes,  and  shall  more- 
over exercise  and  discharge  all  the  powers  and  du- 
ties conferred  by  this  act. 

Sec.  3.  And  be  it  further  enacted,  That  the  circuit 
courts  of  the  United  States,  and  the  superior  courts 
of  each  organized  Territory  of  the  United  States, 
shall  from  time  to  time  enlarge  the  number  of  com- 
missioners, with  a  view  to  afford  reasonable  facili- 
ties to  reclaim  fugitives  from  labor,  and  to  the 
prompt  discharge  of  the  duties  imposed  by  this 
act. 

Sec.  4.  And  be  it  further  enacted,  That  the  com- 
missioners above  named  shall  have  concurrent  juris- 
diction with  the  judges  of  the  circuit  and  district 
courts  of  the  United  States,  in  their  respective  cir- 
cuits and  districts  within  the  several  States,  and  the 
judges  of  the  superior  courts  of  the  Territories,  seve- 
rally and  collectively,  in  term-time  and  vacation; 
and  shall  grant  certificates  to  such  claimants,  upon 
satisfactory  proof  being  made,  with  authority  to 
take  and  remove  such  fugitives  from  service  or  labor, 
under  the  restrictions  herein  contained,  to  the  State 
or  Territory  from  which  such  persons  may  have 
escaped  or  fled. 

Sec.  5.  And  be  it  further  enacted,  That  it  shall  be 
the  duty  of  all  marshals  and  deputy  marshals  to 
obey  and  execute  all  warrants  and  precepts  issued 
under  the  provisions  of  this  act,  when  to  them  di- 
rected; and  should  any  marshal  or  deputy  marshal 
refuse  to  receive  such  warrant  or  other  process,  when 
tendered,  or  to  use  all  proper  means  dilignetly  to 
execute  the  same,  he  shall  on  conviction  thereof  be 
fined  in  the  sum  of  one  thousand  dollars  to  the  use 
of  such  claimant,  on  the  motion  of  such  claimanf, 
by  the  circuit  or  district  court  for  the  district  of 
such  marshal  and  after  arrest  of  such  fugitive  by 
such  marshal,  or  his  deputy  or  whilst  at  any  time  in 
his  custody  under  the  provisions  of  this  act  should 
such  fugitive  escape  whether  with  or  without  the 
assent  of  such  marshal  or  his  deputy,  such  marshal 
shall  be  liable  on  his  official  bond  to  be  prosecuted 
for  the  benefit  of  such  claimant,  for  the  full  value 
of  the  service  or  labor  of  said  fugitive  in  the  State, 
Territory  or  District  whence  he  escaped :  and  the 
better  to  enable  the  said  commissioners,  when  thus 
appointed,  to  execute  their  duties  faithfully  and  effi- 
ciently, in  conformity  with  the  requirements  of  the 
Constitution  of  the  United  States  and  of  this  act, 
they  are  hereby  authorized  and  empowered,  within 
their  counties  respectively,  to  appoint  in  writing 
under  their  hands,  any  one  or  more  suitable  per- 
sons, from  time  to  time,  to  execute  all  such  warrants 
and  other  process  as  may  be  issued  by  them  in  the 
lawful  performance  of  their  respective  duties ;  with 


authority  to  such  commissioners,  or  the  persons  to 
be  appointed  by  them,  to  execute  process  as  afore- 
said, to  summon  and  call  to  their  aid  the  bystanders, 
or  posse  comitatus  of  the  proper  county,  when  neces- 
sary to  insure  a  faithful  observance  of  the  clause  of 
the  Constitution  referred  to,  in  conformity  with  the 
provisions  of  this  act;  and  all  good  citizens  are 
hereby  commanded  to  aid  and  assist  in  the  prompt 
and  efficient  execution  of  this  law,  whenever  their 
services  may  be  required,  as  aforesaid,  for  that  pur- 
pose, and  said  warrants  shall  run,  and  be  executed 
by  said  officers  anywhere  in  the  State,  within  which 
they  are  issued. 

Sec.  6.  And  be  it  further  enacted,  That  when  a 
person  held  to  service  or  labor  in  any  State  or  Ter- 
ritory of  the  United  States,  has  heretofore  or  shall 
hereafter  escape  into  another  State  or  Territory  of 
the  United  States,  the  person  or  persons  to  whom 
such  service  or  labor  may  be  due,  or  his,  her,  or  their 
agent  or  attorney,  duly  authorized,  by  power  of  at- 
torney, in  writing,  acknowledged  and  certified  under 
the  seal  of  some  legal  officer  or  court  of  the  State  or 
Territory  in  which  the  same  may  be  executed,  may 
pursue  and  reclaim  such  fugitive  person,  either  by 
procuring  a  warrant  from  some  one  of  the  courts, 
judges,  or  commissioners  as  aforesaid,  of  the  proper 
circuit,  district,  or  county  for  the  apprehension  of 
such  fugitive  from  service  or  labor,  or  by  seizing  and 
arresting  such  fugitive,  where  the  same  can  be  done 
without  process,  and  by  taking,  or  causing  such  per- 
son to  be  taken,  forthwith  before  such  court,  judge, 
or  commissioner,  whose  duty  it  shall  be  to  hear  and 
determine  the  case  of  such  claimant  in  a  summary 
manner;  and  upon  satisfactory  proof  being  made, 
by  deposition  or  affidavit,  in  writing,  to  be  certified 
by  such  court,  judge  or  commissioner,  or  by  other 
satisfactory  testimony,  duly  taken  and  certified  by 
some  court,  magistrate,  justice  of  the  peace,  or  other 
legal  officer  authorized  to  administer  an  oath  and 
take  depositions  under  the  laws  of  the  State  or  Ter- 
ritory from  which  such  person  owing  service  or  labor 
may  have  escaped,  with  a  certificate  of  such  magis- 
tracy or  other  authority,  as  aforesaid,  with  the  seal 
of  the  proper  court  or  officer  thereto  attached,  which 
seal  shall  be  sufficient  to  establish  the  competency 
of  the  proof,  and  with  proof,  also  by  affidavit,  of  the 
identity  of  the  person  whose  service  or  labor  is 
claimed  to  be  due  as  aforesaid,  that  the  person  so 
arrested  does  in  fact  owe  service  or  labor  to  the  per- 
son or  persons  claiming  him  or  her,  in  the  State  or 
Territory  from  which  such  fugitive  may  have  es- 
caped as  aforesaid,  and  that  said  person  escaped,  to 
make  out  and  deliver  to  such  claimant  his  or  her 
agent  or  attorney,  a  certificate  setting  forth  the  sub- 
stantial facts  as  to  the  service  or  labor  due  from  such 
fugitive  to  the  claimant,  and  of  his  or  her  escape 
from  the  State  or  Territory  in  which  such  service  or 
labor  was  due,  to  the  State  or  Territory  in  which  he 
or  she  was  arrested,  with  authority  to  such  claimant, 
or  his  or  her  agent  or  attorney,  to  use  such  reasona- 
ble force  and  restraint  as  may  be  necessary,  under 
the  circumstances  of  the  case,  to  take  and  remove 
such  fugitive  person  back  to  the  State  or  Territory 
whence  he  or  she  may  have  escaped  as  aforesaid.  In 
no  trial  or  hearing  under  this  act  shall  the  testimony 
of  such  alleged  fugitive  be  admitied  in  evidence  ; 
and  the  certificates  in  this  and  the  first  section  men- 
tioned shall  be  conclusive  of  the  right  of  the  per- 
son or  persons  in  whose  favor  granted,  to  remove 
such  fugitive  to  the  State  or  Territory  from  which 
he  escaped,  and  shall  prevent  all  molestation  of  such 
person  or  persons  by  any  process  issued  by  any  court, 
judge,  magistrate  or  other  person  whomsoever. 

Sec.  7.  And  be  it  further  enacted,  That  any  per- 
son who  shall  knowingly  and  willfully  obstruct,  hiu- 


APPENDIX. 


265 


der,  or  prevent  such,  claimant,  his  agent  or  attorney,  I 
or  any  person  or  persons  lawfully  assisting  him,  her, 
or  them,  from  arresting  such  a  fugitive  from  service  [ 
or  labor,  either  with  or  without  process  as  aforesaid;  j 
or  shall  rescue  or  attempt  to  rescue  such  fugitive 
from  service  or  labor,  from  the  custody  of  such 
claimant,  his  or  her  agent  or  attorney,  or  other  per- 
son or  persons  lawfully  assisting  as  aforesaid,  when 
so  arrested,  pursuant  to  the  authority  herein  given 
and  declared;  or  shall  aid,  abet,  or  assist  such  per- 
son so  owing  service  or  labor  as  aforesaid,  directly 
or  indirectly,  to  escape  from  such  claimant,  his  agent 
or  attorney,  or  other  person  or  persons  legally  au- 
thorized as  aforesaid ;  or  shall  harbor  or  conceal 
such  fugitive,  so  as  to  prevent  the  discovery  and 
arrest  of  such  person,  after  notice  or  knowledge  of 
the  fact  that  such  person  was  a  fugitive  from  ser- 
vice or  labor,  as  aforesaid,  shall  for  either  of  said 
offences,  be  subject  to  a  fine  not  exceeding  one  thou- 
sand dollars,  and  imprisonment  not  exceeding  six 
months,  by  indictment  and  conviction  before  the 
district  court  of  the  United  States  for  the  district 
in  which  such  offence  may  have  been  committed,  or 
before  the  proper  court  of  criminal  jurisdiction,  if 
committed  within  any  one  of  the  organized  Territo- 
ries of  the  United  States  ;  and  shall  moreover  for- 
feit and  pay,  by  way  of  civil  damages  to  the  party 
injured  by  such  illegal  conduct,  the  sum  of  one 
thousand  dollars  for  each  fugitive  so  lost  as  afore- 
said, to  be  recovered  by  action  of  debt,  in  any  of  the 
district  or  territorial  courts  aforesaid,  within  whose 
jurisdiction  the  said  offence  may  have  been  com- 
mitted. 

Sec.  8.  And  be  it  further  enacted,  That  the  mar- 
shals, their  deputies,  and  the  clerks  of  the  said  dis- 
trict and  territorial  courts,  shall  be  paid  for  their 
services  the  like  fees  as  may  be  allowed  to  them  for 
similar  services  in  other  cases ;  and  where  such  ser- 
vices are  rendered  exclusively  in  the  arrest,  custody, 
and  delivery  of  the  fugitive  to  the  claimant,  his  ot- 
her agent  or  attorney,  or  where  such  supposed  fugi- 
tive may  be  discharged  out  of  custody  for  the  want 
of  sufficient  proof  as  aforesaid,  then  such  fees  are 
to  be  paid  in  the  whole  by  such  claimant,  his  agent 
or  attorney ;  and  in  all  cases  where  the  proceedings 
are  before  a  commissioner,  he  shall  be  entitled  to  a 
fee  of  ten  dollars  in  full  for  his  services  in  each  case, 
upon  the  delivery  of  the  said  certificate  to  the  claim- 
ant, his  or  her  agent  or  attorney ;  or  a  fee  of  five 
dollars  in  cases  where  the  proof  shall  not  in  the 
opinion  of  such  commissioner,  warrant  such  certi- 
ficate and  delivery,  inclusive  of  all  services  incident 
to  such  arrest  and  examination,  to  be  paid,  in  either 
case,  by  the  claimant,  his  or  her  agent  or  attorney. 
The  person  or  persons  authorized  to  execute  the  pro- 
cess to  be  issued  by  such  commissioners  for  the  ar- 
rest and  detention  of  fugitives  from  service  or  labor 
as  aforesaid,  shall  also  be  entitled  to  a  fee  of  five 
dollars  each  for  each  person  he  or  they  may  arrest  and 
take  before  any  such  commissioner  as  aforesaid,  at 
the  instance  and  request  of  such  claimant,  with  such 
ether  fees  as  may  be  deemed  reasonable  by  such 
commissioner  for  such  other  additional  services  as 
may  be  necessarily  performed  by  him  or  them  :  such 
as  attending  at  the  examination,  keeping  the  fugi- 
tive in  custody,  and  providing  him  with  food  and 
lodging  during  his  detention,  and  until  the  final  de- 
termination of  such  commissioner ;  and  in  general 
for  performing  such  other  duties  as  may  be  required 
by  such  claimant,  his  or  her  attorney  or  agent,  or 
commissioner  in  the  premises,  such  fees  to  be  made 
up  in  conformity  with  the  fees  usually  charged  by 
the  officers  of  the  courts  of  justice  within  the  proper 


district  or  county,  as  near  as  may  be  practicable,  and 
paid  by  such  claimants,  their  agents  or  attorneys, 
whether  such  supposed  fugitives  from  service  or 
labor  be  ordered  to  be  delivered  to  such  claimants 
by  the  final  determination  of  such  commissioners  or 
not. 

Sec.  9.  And  be  it  further  enacted,  That  upon  affi- 
davit made  by  the  claimant  of  such  fugitive,  his 
agent  or  attorney,  after  such  certificate  has  been 
issued,  that  he  has  reason  to  apprehend  that  such 
fugitive  will  be  rescued  by  force  from  his  or  their 
possession  before  he  can  be  taken  beyond  the  limits 
of  the  State  in  which  the  arrest  is  made,  it  shall  be 
the  duty  of  the  officer  making  the  arrest  to  retain 
such  fugitive  in  his  custody,  and  to  remove  him  to 
the  State  whence  he  fled,  and  there  to  deliver  him 
to  said  claimant,  his  agent,  or  attorney.  And  to  this 
end,  the  officer  aforesaid  is  hereby  authorized  and 
required  to  employ  zo  many  persons  as  he  may  deem 
necessary  to  overcome  such  force,  and  to  retain  them 
in  his  service  so  long  as  circumstances  may  require. 
The  said  officer  and  his  assistants,  while  so  em- 
ployed, to  receive  the  same  compensation,  and  to  be 
allowed  the  same  expenses,  as  are  now  allowed  by 
law  for  transportation  of  criminals,  to  be  certified 
by  the  judge  of  the  district  within  which  the  arrest 
is  made,  and  paid  out  of  the  Treasury  of  the  United 
States. 

Sec.  10.  And  be  it  further  enacted,  That  when  any 
person  held  to  service  or  labor  in  any  State  or  Ter- 
ritory, or  in  the  District  of  Columbia,  shall  escape 
therefrom,  the  party  to  whom  such  service  or  labor 
shall  be  due,  his,  her,  or  their  agent  or  attorney, 
may  apply  to  any  court  of  record  therein,  or  judge 
thereof  in  vacation,  and  make  satisfactory  proof  to 
such  court,  or  judge  in  vacation,  of  the  escape  afore- 
said, and  that  the  person  escaping  owed  service  or 
labor  to  such  party.  Whereupon  the  court  shall 
cause  a  record  to  be  made  of  the  matters  so  proved, 
and  also  a  general  description  of  the  person  so  es- 
caping, with  such  convenient  certainty  as  may  be ; 
and  a  transcript  of  such  record,  authenticated  by 
the  attestation  of  the  clerk  and  of  the  seal  of  the 
said  court,  being  produced  in  any  other  State,  Ter- 
ritory, or  district  in /which  the  person  so  escaping 
may  be  found,  and  being  exhibited  to  any  judge, 
commissioner,  or  other  officer  authorized  by  the  law 
of  the  United  States  to  cause  persons  escaping  from 
service  or  labor  to  be  delivered  up,  shall  be  held  and 
taken  to  be  full  and  conclusive  evidence  of  the  fact 
of  escape,  and  that  the  service  or  labor  of  the  per- 
son escaping  is  due  to  the  party  in  such  record  men- 
tioned. And  upon  the  production  by  the  said  party 
of  other  and  further  evidence  if  necessary,  either 
oral  or  by  affidavit,  in  addition  to  what  is  contained 
in  the  said  record  of  the  identity  of  the  person  es- 
caping, he  or  she  shall  be  delivered  up  to  the  claim- 
ant. And  the  said  court,  commissioner,  judge,  or 
other  person  authorized  by  this  act  to  grant  certifi- 
cates to  claimants  of  fugitives,  shall  upon  the  pro- 
duction of  the  record  and  other  evidences  aforesaid, 
grant  to  such  claimant  a  certificate  of  his  right  to 
take  any  such  person  identified  and  proved,  to  be 
owing  service  or  labor  as  aforesaid,  which  certificate 
shall  authorize  such  claimant  to  seize  or  arrest  and 
transport  such  person  to  the  State  or  Territory  from 
!  which  he  escaped:  Provided,  That  nothing  herein 
!  contained  shall  be  construed  as  requiring  the  pro- 
I  duction  of  a  transcript  of  such  record  as  evidence  as 
aforesaid.  But  in  its  absence  the  claim  shall  be  heard 
'  and  determined  upon  other  satisfactory  proofs,  com- 
petent in  law. 
j    Approved  September  18,  1850. 


266 


APPENDIX. 


Charge  of  Judge  Xane  to  the  Grand  Jury. 

On  the  opening  of  the  November  Term,  1850, 
being  the  first  term  of  the  District  Court  of  the 
United  States  for  the  Eastern  District  of  Pennsyl- 
vania, after  the  passage  of  the  "  Fugitive  Slave 
Law;"  the  following  charge  to  the  Grand  Jury  was 
delivered  November  18,  1850,  by  Judge  Kane. 

Gentlemen  of  the  Grand  Jury  : — It  has  not  been 
customary  in  this  District,  for  some  years  past,  to 
open  the  sessions  of  the  United  States  Courts,  with 
a  special  charge  to  the  Grand  Jury.  The  experi- 
ence of  the  gentlemen  who  have  constituted  that 
body,  and  the  well  understood  character  of  the  few 
crimes  that  called  for  their  official  action,  have 
made  it  generally  unnecessary.  Circumstances, 
however,  at  the  present  time,  justify  a  departure 
from  our  ordinary  practice  in  this  respect. 

You  are  aware  that,  by  one  of  the  articles  of  the 
Federal  Constitution,  it  is  stipulated  that  persons 
"  held  to  service  or  labor  in  one  State  under  the 
laws  thereof,  escaping  into  another,  shall  be  deliv- 
ered upon  claim  of  the  party  to  whom  such  labor  or 
service  may  be  due."  This  constitutional  provision 
was  expanded  into  details  by  the  Act  of  Congress  of 
the  12th  of  February,  1793,  which  empowered  the 
master  or  his  agent,  to  seize  or  arrest  the  fugitive 
from  labor,  and  take  him  before  a  Judge  of  the  United 
States,  or  any  magistrate  of  a  county,  city,  or  town 
corporate,  who,  on  receiving  proof  of  the  facts,  either 
by  oral  testimony  or  affidavit,  was  required  to  grant 
a  certificate,  having  the  effect  of  a  warrant,  for  the 
removal  of  the  fugitive. 

It  was  a  grave  defect  in  this  law  that  it  left  the 
master  without  the  aid  of  process  in  the  first  instance, 
to  impress  the  accustomed  legal  formalities  upon  the 
arrest  which  it  authorized.  The  capture  of  the  fugi- 
tive being  without  formal  or  apparent  warrant,  the 
right  to  make  it,  was  of  course  readily,  and  in  fact 
often,  simulated ;  and  the  public  sympathies  in  con- 
sequence enlisting  themselves  naturally  on  the  side 
of  the  arrested  party,  the  office  of  bringing  the  slave 
to  the  judicial  forum  became  irksome,  and  even  dan- 
gerous sometimes,  from  popular  excitement.  The 
master  was  therefore,  under  strong  inducements  to 
remove  his  slave  without  seeking  the  Judge's  certi- 
ficate ;  and  thus  his  exercise  of  a  legal  right,  made 
him  still  more  liable  to  be  confounded  with  the  man- 
stealer,  and  the  man-stealer  found  facilities  in  mask- 
ing his  crime. 

These  considerations,  as  some  who  hear  me  may 
remember,  entered  into  the  view  of  the  Pennsyl- 
vania Legislature,  when  it  passed  the  Act  of  25th 
March,  1827.  By  that  statute,  the  several  judges 
and  justices  of  the  peace  commissioned  by  the  State, 
were  authorized  to  issue  warrants,  upon  the  applica- 
tion of  the  master  or  his  agent,  under  which  the 
arrest  was  made  by  a  sheriff  or  a  constable  ;  and  the 
hearing  took  place  before  State  Judges,  who  either 
gave  the  master  a  certificate  recognizing  his  right, 
or  discharged  the  prisoner. 

By  this  Act,  Pennsylvania  aided  effectively  for  the 
time  in  carrying  out  her  constitutional  engagement 
for  the  delivering  up  of  fugitives  from  labor.  I  am 
not  aware  that  while  it  continued  in  force,  the  mas- 
ter, in  any  considerable  number  of  cases,  encountered 
difficulties  in  asserting  his  right,  or  that  injustice 
was  done  under  its  provisions  to  any  one  alleged 
fugitive  ;  and  certainly  the  peace  of  the  community 
was  not  outraged,  nor  the  dignity  of  the  law  insulted, 
as  they  have  been  since,  by  acts  and  threats  of  law- 
less force.  It  pleased  the  Legislature,  however,  in 
the  spring  of  1847,  not  only  to  repeal  this  statute, 
bat  also  to  inhibit  the  officers  of  the  State,  under 
very  stern  penalties,  from  aiding  to  execute  the  Act 


of  Congress  of  1798  ;  moreover,  to  refuse  the  use  of 
the  public  prisons  for  the  detention  of  fugitives  from 
labor,  and  even  to  denounce  as  a  misdemeanor  any 
attempt  of  the  master,  if  attended  with  violence  and 
tumult,  to  seize  a  fugitive,  "  either  with  or  without 
the  intention  of  taking  him  before  a  Judge  of  the 
United  States  Courts." 

It  is  not  my  office  to  make  any  comment  on  the 
spirit  or  the  terms  of  this  statute  of  Pennsylvania. 
But  I  have  the  right  to  say,  that  its  consequences 
have  apparently  been  most  unhappy — injurious  to 
the  master,  perilous  to  the  free  black,  and  co-opera- 
ting banefully  with  other  causes,  to  menace  that 
harmony  between  the  States  of  the  Union,  without 
which  the  Union  itself  is  scarcely  a  blessing.  From 
the  time  of  its  enactment  till  the  passing  of  the  pre- 
sent Act  of  Congress,  the  master  has  been  generally 
advised,  and  I  think  properly,  to  avoid  the  "  tumult 
and  violence"  which  would  follow  upon  an  attempt 
to  carry  his  fugitive  slave  to  the  Judge  at  Pittsburg 
or  Philadelphia,  and  to  fall  back  instead,  on  his 
constitutional  right  of  reclaiming  him  without  a 
judicial  hearing — a  mode  of  reclamation  always 
liable  to  popular  misconception,  and  not  unfre- 
quently  the  provocative  of  wrong  against  the  party 
resorting  to  it.  On  the  other  hand,  the  crime  of 
kidnapping  free  negroes,  made  more  secure  from  de- 
tection by  the  withdrawal  from  the  rightful  master, 
of  the  badge  which  distinguished  him  from  the 
wrong-doer,  has,  if  I  am  correctly  informed,  been 
perpetrated  within  our  borders  much  more  frequently 
than  it  was  before.  Fanatics  of  civil  discord,  have, 
meanwhile,  exulted  in  the  fresh  powers  of  harm 
with  which  this  state  of  things  invested  them;  and 
the  country  has  been  convulsed  in  its  length  and 
breadth,  as  if  about  to  be  rent  asunder,  and  tossed 
in  fragments,  by  the  outbursting  of  a  volcano. 

The  Act  of  Congress  of  the  present  year  does  little 
more  than  reinstate  the  enactments  of  the  Pennsyl- 
vania statute  of  1826,  with  the  sanction  of  a  law  of 
the  United  States.  It  authorizes  the  issue  of  war- 
rants by  the  Federal  Judges,  and  by  the  Commis- 
sioners who  exercise  the  functions  of  justice  of  the 
peace  under  the  laws  of  the  United  .States,  requires 
those  officers  to  hear  and  adjudicate  upon  the  case, 
and  makes  it  the  duty  of  the  marshal  and  his  deputies 
to  execute  their  process.  Just  as  the  Pennsylvania 
statute  authorized  the  State  judges  and  justices  to 
issue  warrants,  the  State  judges  to  hear  and  adjudi- 
cate, and  the  sheriffs  and  constables  to  execute. 

These  are,  indeed,  the  only  changes  of  any  note 
which  the  Act  of  Congress  has  made.  Its  other  pro- 
visions, except  those  of  mere  detail,  are  declaratory 
simply  of  the  law  as  it  stood  before,  or  are  in  close 
analogy  to  safe  and  long  established  usages.  Such 
is  that  clause,  which  excludes  the  arrested  party 
from  giving  testimony  in  his  own  case;  that  which 
recognizes  depositions  and  judicial  records  from  the 
State  whence  the  fugitive  has  escaped,  as  competent 
proofs  on  the  question  of  extradition;  and  that 
which,  for  the  purposes  of  the  same  question,  at  the 
summary  hearing,  regards  an  adjudication  made  ex 
parte  in  the  Courts  of  that  State,  as  conclusive  on 
the  point  that  a  certain  slave  has  escaped,  and  that 
the  claimant  was  his  lawful  master,  leaving  open  the 
question  of  the  identity  of  the  parties.  Such,  too, 
is  the  provision  that  the  certificate  or  warrant  of  ex- 
tradition shall  not  be  hindered  or  delayed  in  its 
execution  by  the  subsequent  intervention  of  other 
Courts  ;  and  that  which  commands  the  posse  comi- 
tatus  in  aid  of  the  officers  who  are  charged  with 
process. 

I  have  been  led  into  these  remarks  by  a  desire 
that  the  provisions  of  this  Act  of  Congress  should  be 
better  understood  than  they  seem  to  have  been,  by 


APPENDIX. 


267 


gome  of  our  citizens.  But  it  has  not  been  my  object 
to  discuss  its  policy.  It  is  the  law.  Its  enactment 
was  within  the  clearly  expressed  powers  of  Con- 
gress, or  rather  in  direct  obedience  to  a  constitu- 
tional mandate.  And  its  policy  we  have  nothing  to 
do  with  here.  That  has  been  passed  upon  by  the 
people  and  the  States,  through  their  authorized  re- 
presentatives. Our  duty,  as  citizens,  now,  is  to 
r  obey  it  frankly  and  honestly,  as  a  law  of  the  land. 
Your  duty  and  mine,  gentlemen,  as  jurors  and  judge, 
is  to  see  to  it,  that  it  is  so  obeyed,  and  that  the  legal 
penalties  for  violating  it,  are  exacted  and  enforced, 
without  fear,  favor,  or  affection. 

My  object  in  referring  to  this  Act  at  the  opening 
of  our  criminal  sessions,  is  to  call  your  attention  to 
certain  enactments,  by  which  its  execution  may  be 
protected  and  enforced  through  the  instrumentality 
of  the  Grand  Jury.  It  is  not  that  I  apprehend  the 
constitution,  or  the  law,  still  less  the  Union  of  the 
States,  to  be  in  danger,  from  any  acts,  perpetrated, 
or  likely  to  be  perpetrated,  in  this  District.  We  are 
here  in  the  midst  of  a  law-abiding  community : 
which,  exercising  liberally,  as  I  trust  it  always  may, 
the  right  of  discussion,  and  its  attendant  right  of 
political  reform,  regards  every  law,  so  long  as  it 
remains  unrepealed  upon  the  statute  book,  as  bind- 
ing upon  the  acts  and  consciences  of  the  whole 
people.  "We  are  in  a  community  which  has  hereto- 
fore suffered  in  reputation  and  repose,  more  perhaps 
than  any  other  of  our  day  and  country,  from  crimes 
of  excitement,  turbulence,  and  force ;  and  a  com- 
munity, therefore,  more  determinate  than  others, 
whose  experience  has  been  less  painful,  can  be,  to 
secure  domestic  peace,  by  vindicating  the  supremacy 
of  the  laws. 

We  know  that  this  law  will  be  enforced  here  fairly, 
and  according  to  its  terms  :  and  that  it  will  be  vin- 
dicated, no  matter  what  the  personal  character  of 
the  men  who  may  assail  it,  or  what  their  profession 
or  position  in  life,  or  their  just  influence  on  other 
topics  with  those  who  are  about  them.  This  law,  I 
repeat  it,  will  be  enforced  ;  and  if  broken,  it  will  be 
vindicated.  The  constitutional  compact,  which  was 
made  within  these  very  walls,  will  never  be  repu- 
diated here. 

I  have  alluded  to  unreserved  discussion,  as  among 
the  essential  and  characteristic  rights  of  our  coun- 
trymen. It  may  be  even  more,  a  duty;  and  yet 
there  are  limits  beyond  which,  what  is  sometimes 
called  discussion,  is  neither  profitable  nor  lawful. 
To  question,  to  debate,  to  determine  upon  the  policy 
or  the  impolicy  of  a  particular  law,  or  a  system  of 
laws  ;  to  influence  by  argument  or  by  appeals  to 
feelings  even,  the  action  of  those  to  whom  the  law- 
making power  is  entrusted  by  the  constitution,  or 
the  judgment  of  the  people  of  the  States,  who,  by 
their  votes,  make  the  law-makers  ;  all  this  is  lawful, 
and  may  be  praiseworthy.  But  to  go  further,  and 
refuse  obedience  to  a  statute ;  to  stimulate  oppugn- 
ation  to  it  while  it  stands  in  all  the  dignity  of  the 
"supreme  law  of  the  land;"  to  harass  the  officers  of 
the  law,  while  engaged  in  enforcing  it;  or  to  seek 
to  deter  them  from  attempting  to  do  so,  by  denun- 
ciation or  menaces  of  harm,  or  by  pledges  of  immu- 
nity to  deeds  of  violent  resistance  against  them; 
this  is  neither  the  duty,  nor  the  moral  right,  nor,  as 
this  Court  gives  you  in  charge,  is  it  the  legal  right 
of  any  citizen. 

There  are  several  Acts  of  Congress  which  may  be 
properly  brought  to  your  view  in  connection  with 
this  subject.  The  first  of  these,  in  the  order  of 
dates,  is  the  Act  of  the  30th  April,  1790,  commonly 
called  the  Crimes  Act  (ch.  9.)  The  22d  section  of 
this  Act  provides,  that  "  if  any  person  shall,  know- 


ingly and  willfully,  obstruct,  resist,  or  oppose  any 
officer  of  the  United  States,  in  serving,  or  attempt- 
;  ing  to  serve,  any  mesne  process  or  warrant,  or  any 
rule  or  order  of  any  of  the  Courts  of  the  United 
States,  or  any  other  legal  or  judicial  writ  or  process 
whatsoever,  every  such  person  shall,  on  conviction, 
;  be  imprisoned  not  exceeding  twelve  months,  and 
fined  not  exceeding  three  hundred  dollars.  This 
j  section  has  been  held  by  Judge  Washington  to  com- 
prehend all  descriptions  of  process  whatsoever,  in  the 
hands  of  an  officer  of  the  United  States;  and  the  of- 
fence of  resistance  to  be  complete  where  the  party 
has  refused  to  obey  the  officer  according  to  hi?  writ, 
whether  the  refusal  was  or  was  not  accompanied  by 
a  breach  of  the  peace.    (2  W.  C.  C.  E.  335.) 

Another  Act,  is  that  of  the  2d  of  March,  1831, 
(ch.  99,)  of  which  the  second  section  contains  these 
words  :  "  If  any  person  shall  corruptly,  or  by  threats 
or  force,  endeavor  to  influence,  intimidate,  or  impede 
any  juror,  witness,  or  officer,  in  any  Court  of  the 
United  States,  in  the  discharge  of  his  duty,  or  shall 
corruptly,  or  by  threats  or  force,  obstruct  or  impede, 
or  endeavor  to  obstruct  or  impede,  the  due  adminis- 
tration of  justice  therein,  every  person  so  offending, 
shall,  on  conviction,  be  punished  by  fine  not  exceed- 
ing five  hundred  dollars,  or  by  imprisonment,  not 
exceeding  three  months,  or  both,  according  to  the 
nature  and  aggravation  of  the  offence." 

Besides  these,  the  Act  of  Congress  of  the  18th  of 
September  last,  (eh.  60,)  relates  more  particularly  to 
!  the  offence  of  obstructing  the  arrest  of  a  fugitive 
from  labor,  and  of  rescuing  or  attempting  to  rescue 
him  when  arrested,  or  aiding  him  to  escape  from 
custody  after  arrest,  or  harboring  or  concealing  him, 
so  as  to  prevent  his  discovery  and  arrest,  after 
knowledge  or  notice  that  he  was  such  a  fugitive  ; 
each  of  which  offences,  it  subjects  to  a  fine  not  ex- 
ceeding one  thousand  dollars,  and  an  imprisonment 
not  exceeding  six  months. 

If,  gentlemen,  it  shall  be  brought  to  your  knowl- 
edge that  either  of  the  offences  which  these  Acts 
describe,  has  been  committed  within  this  district, 
either  by  resident  citizens,  or  by  strangers,  it  will 
be  your  duty,  under  the  oaths  and  affirmations  you 
have  now  taken,  to  bring  the  facts  to  the  notice  of 
the  Court,  either  by  an  appropriate  presentment,  or 
by  bills  of  indictment  against  the  parties  inculpated. 

I  am  not  judicially  apprised,  however,  that  any 
evidence  will  be  laid  before  you,  which  should  form 
the  basis  of  such  action  on  your  part.  We  have,  all 
of  us,  from  time  to  time,  heard  rumors  of  popular 
gatherings  in  this  and  some  of  the  adjoining  eoun- 
j  ties,  at  which  purposes  are  said  to  have  been  threat- 
ened, approaching  more  or  less  closely  to  crime. 
But  I  do  not  remember  to  have  heard  that  any  officer 
of  the  United  States,  or  other  person  charged  with 
process,  has  been  resisted  within  the  bounds  of  this 
i  district,  or  that  the  meetings  around  us,  have  gone 
further  than  the  proclamation  of  some  peculiar 
theories  of  political  morals,  and  some  vague  and 
I  contingent  menaces.  And  I  would  distinguish 
liberally,  and  I  would  have  you  to  distinguish,  be- 
tween mere  extravagance  of  diction,  and  the  en- 
deavor by  threats  or  force,  to  obstruct  the  execution 
of  the  laws  of  the  country. 

I  have  now,  gentlemen,  completed  in  all  frank- 
ness, the  few  observations  which  the  occasion  has 
[  seemed  to  me  to  call  for.  I  submit  them  to  you  with 
the  fullest  assurance  that  they  will  be  accepted  by 
i  you  in  a  kindred  spirit,  and  that  your  deliberations 
and  your  action,  on  the  interesting  subject  to  which 
they  relate,  will  be  characterized  by  firmness,  dig- 
nity, and  above  all,  by  an  uncompromising  devotion 
to  the  Constitution  of  the  United  States. 


268 


APPENDIX. 


Judge  Kane's  charge  to  the  Grand  Jury. 

This  was  followed  on  September  29,  1851,  by  the 
following  Charge  to  the  Grand  Jury,  by  Judge 
Kane  : — 

Gentlemen  of  the  Grand  Jury — It  has  been 
represented  to  me,  that  since  we  met  last,  circum- 
stances have  occurred  in  one  of  the  neighboring 
counties  of  our  district,  which  should  call  for  your 
prompt  scrutiny,  and  perhaps  for  the  energetic  ac- 
tion of  the  Court. 

It  is  said  that  a  citizen  of  the  State  of  Maryland, 
who  had  come  into  Pennsylvania  to  reclaim  a  fugi- 
tive from  labor,  was  forcibly  obstructed  in  the  at- 
tempt by  a  body  of  armed  men, — assaulted,  beaten, 
and  murdered  : — that  some  members  of  his  family, 
who  had  accompanied  him  in  the  pursuit,  were  at 
the  same  time  and  by  the  same  party  maltreated  and 
grievously  wounded  :  and  that  an  officer  of  justice, 
constituted  under  the  authority  of  this  Court,  who 
sought  to  arrest  the  fugitive,  was  impeded  and  re- 
pelled by  menaces  and  violence,  while  proclaiming 
his  character  and  exhibiting  his  warrant.  It  is  said, 
too,  that  the  time  and  manner  of  these  outrages, 
their  asserted  object,  the  denunciations  by  which 
they  were  preceded,  and  the  simultaneous  action  of 
most  of  the  guilty  parties,  evinced  a  combined  pur- 
pose forcibly  to  resist  and  make  nugatory  a  consti- 
tutional provision,  and  the  statutes  enacted  in  pur- 
suance of  it : — and  it  is  added,  in  confirmation  of 
this,  that  for  some  months  back  gatherings  of  peo- 
ple,  strangers  as  well  as  citizens,  have  been  held 
from  time  to  time  in  the  vicinity  of  the  place  of  the 
'■  ecent  outbreak,  at  which  exhortations  were  made 
and  pledges  interchanged  to  hold  the  law  for  the 
recovery  of  fugitive  slaves  as  of  no  validity,  and  to 
defy  its  execution. 

Such  are  some  of  the  representations  that  have 
been  made  in  my  hearing,  and  in  regard  to  which 
it  has  become  your  duty,  as  the  Grand  Inquest  of 
the  district,  to  make  legal  inquiry.  Personally,  I 
know  nothing  of  the  facts,  or  the  evidence  relating 
to  them.  As  a  member  of  the  Court,  before  which 
the  accused  persons  may  hereafter  be  arraigned  and 
tried,  I  have  sought  to  keep  my  mind  altogether 
free  from  any  impressions  of  their  guilt  or  inno- 
cence, and  even  from  an  extra-judicial  knowledge 
of  the  circumstances  which  must  determine  the  legal 
character  of  the  offence  that  has  been  perpetrated. 
It  is  due  to  the  great  interests  of  public  justice,  no 
less  than  to  the  parties  implicated  in  a  criminal 
charge,  that  their  cause  shall  be  in  no  wise  and  in 
no  degree  prejudged.  And  in  referring,  therefore, 
to  the  representations  which  have  been  made  to  me, 
I  have  no  other  object  than  to  point  you  to  the  rea- 
sons for  my  addressing  you  at  this  advanced  period 
of  our  sessions,  and  to  enable  you  to  apply  with 
more  facility  and  certainty  the  principles  and  rules 
of  law,  which  I  shall  proceed  to  lay  before  you. 

If  the  circumstances  to  which  I  have  adverted 
have  in  fact  taken  place,  they  involve  the  highest 
crime  known  to  our  laws.  Treason  against  the 
United  States  is  defined  by  the  Constitution,  Art.  3, 
Sec.  3,  CI.  1,  to  consist  in  "levying  war  against 
them,  or  in  adhering  to  their  enemies,  giving  them 
aid  and  comfort."  This  definition  is  borrowed  from 
the  ancient  law  of  England,  Stat.  25,  Edw.  3,  Stat. 
5,  chap.  2,  and  its  terms  must  be  understood,  of 
course,  in  the  sense  which  they  bore  in  that  law, 
and  which  obtained  here  when  the  Constitution  was 
adopted.  The  expression  "levying  war,"  so  re- 
garded, embraces  not  merely  the  act  of  formal  or 
declared  war,  but  any  combination  forcibly  to  pre- 


vent or  oppose  the  execution  or  enforcement  of  a 
provision  of  the  Constitution  or  of  a  public  Statute, 
if  accompanied  or  followed  by  an  act  of  forcible  op- 
position in  pursuance  of  such  combination.  This, 
in  substance,  has  been  the  interpretation  given  to 
these  words  by  the  English  judges,  and  it  has  been 
uniformly  and  fully  recognized  and  adopted  in  the 
Courts  of  the  United  States.  (See  Foster,  Hale  and 
Hawkins,  and  the  opinions  of  Iredell,  Patterson, 
Chase,  Marshall,  and  Washington,  J.  J.,  of  the  Su- 
preme Court,  and  of  Peters,  D.  J.,  in  United  States 
vs.  Mitchell United  States  vs.  Fries;  United  States 
vs.  Vollum  and  Swartwout,  and  United  States  vs. 
Burr.) 

The  definition,  as  you  will  observe,  includes  two 
particulars,  both  of  them  indispensable  elements  of 
the  offence.  There  must  have  been  a  combination 
or  conspiring  together  to  oppose  the  law  by  force, 
and  some  actual  force  must  have  been  exerted;  or 
the  crime  of  treason  is  not  consummated. 

The  highest,  or  at  least  the  direct  proof  of  the 
combining  may  be  found  in  the  declared  purposes 
of  the  individual  party  before  the  actual  outbreak; 
or  it  may  be  derived  from  the  proceedings  of  meet- 
ing, in  which  he  took  part  openly,  or  which  he  either 
prompted,  or  made  effective  by  his  countenance  or 
sanction, — commending,  counselling  and  instigating 
forcible  resistance  to  the  law.  I  speak,  of  course, 
of  conspiring  to  resist  a  law,  not  the  more  limited 
purpose  to  violate  it,  or  to  prevent  its  application 
and  enforcement  in  a  particular  case,  or  against  a 
particular  individual.  The  combination  must  be 
directed  against  the  law  itself. 

But  such  a  direct  proof  of  this  element  of  the 
offence  is  not  legally  necessary  to  establish  its  exist- 
ence. The  concert  of  purpose  maybe  deduced  from 
the  concerted  action  itself,  or  it  may  be  inferred  from 
facts  concurring  at  the  time,  or  afterwards,  as  well 
as  before. 

Besides  this,  there  must  be  some  act  of  violence, 
as  the  result  or  consequence  of  the  combining.  But 
here,  again,  it  is  not  necessary  to  prove  that  the  in- 
dividual accused  was  a  direct,  personal  actor  in  the 
violence.  If  he  was  present,  directing,  aiding,  abet- 
ting, counselling  or  countenancing  it,  he  is  in  law 
guilty  of  the  forcible  act.  Nor  is  even  his  personal 
presence  indispensable.  Though  he  be  absent  at 
the  time  of  its  actual  perpetration,  yet  if  he  directed 
the  act,  devised  or  knowingly  furnished  the  means 
for  carrying  it  into  effect,  instigating  others  to  per- 
form it,  he  shares  their  guilt.  In  treason  there  are 
no  accessories. 

There  has  been,  I  fear,  an  erroneous  impression 
on  this  subject  among  a  portion  of  our  people.  If 
it  has  been  thought  safe  to  counsel  and  instigate 
others  to  acts  of  forcible  oppugnation  to  the  provi- 
sions of  a  statute, — to  inflame  the  minds  of  the  ig- 
norant by  appeals  to  passion,  and  denunciations  of 
the  law  as  oppressive,  unjust,  revolting  to  the  con- 
science,(and  not  binding  on  the  actions  of  men, — to 
represent  the  Constitution  of  the  land  as  a  compact 
of  iniquity,  which  it  were  meritorious  to  violate  or 
subvert, — the  mistake  has  been  a  grievous  one;  and 
they  who  have  fallen  into  it  may  rejoice,  if  perad- 
venture  their  appeals  and  their  counsels  have  been 
hitherto  without  effect.  The  supremacy  of  the  Con- 
stitution, in  all  its  provisions,  is  at  the  very  basis  of 
our  existence  as  a  nation.  He,  whose  conscience, 
or  whose  theories  of  political  or  individual  right 
forbid  him  to  support  and  maintain  it  in  its  fullest 
integrity,  may  relieve  himself  from  the  duties  of 
citizenship  by  divesting  himself  of  its  rights.  But 
while  he  remains  within  our  borders,  he  is  to  remem- 
ber that  successfully  to  instigate  treason  is  to  com- 
mit it. 


APPENDIX. 


269 


I  shall  not^be  supposed  to  imply  in  these  remarks 
that  I  hare  doubts  of  the  law-abiding  character  of 
dur  people.    Xo  one  can  know  them  well  without 
the  most  entire  reliance  on  their  fidelity  to  the  Con- 
stitution.   Some  of  them  may  differ  from  the  mass, 
as  to  the  rightfulness  or  the  wisdom  of  this  or  the 
other  provision,  that  is  found  in  the  federal  com- 
pact.— they  may  be  divided  in  sentiment  as  to  the 
policy  of  a  particular  statute,  or  of  some  provision  i 
in  a  statute  ; — but  it  is  their  honest  purpose  to  stand 
by  the  engagements,  all  the  engagements  which  j 
bind  them  to  their  brethren  of  the  other  States. 
They  have  but  one  country,  they  recognize  no  law  j 
of  higher  social  obligation  "than  its  Constitution  and  ; 
the  laws  made  in  pursuance  of  it:  they  recognize  i 
no  higher  appeal  than  to  the  tribunals  it  has  ap 
pointed  :  they  cherish  no  patriotism  that  looks  be 
yond  the  Union  of  the  States. 

That  there  are  men  here,  as  elsewhere,  whom  a  ; 
misguided  zeal  impels  to  violations  of  law, — that  : 
there  are  others  who  are  controlled  by  false  sympa-  I 
thies,  and  some  who  yield  too  readily  and  too  fully 
to  sympathies  not  always  false,  or,  if  false,  yet  par-  | 
donable,  and  become  criminal  by  yielding, — that  we 
have  not  only  in  our  jails  and  alms-houses,  but  con- 
gregated here  and  there,  in  detached  portions  of  the 
State,  ignorant  men,  many  of  them  without  political 
rishts,  degraded  in  social  position,  and  instinctive 
ofrevolt, — all  this  is  true.  It  is  proved,  by  the  daily 
record  of  our  public  courts,  and  by  the  ineffective 
labors  of  those  good  men  among  us,  who  seek  to 
detach  want  from  temptation,  passion  from  violence, 
and  ignorance  from  crime.    But  it  should  not  be 
supposed,  that  any  of  these  represent  the  sentiment 
of  Pennsylvania,  and  it  would  be  to  wrong  our  peo- 
ple sorely,  to  include  them  in  the  same  category  of 
personal,  social,  or  political  morals. 

It  is  declared  in  the  article  of  the  Constitution 
which  I  have  already  cited,  that  "no  person  shall 
be  convicted  of  treason,  unless  on  the  testimony  of 
two  witnesses  to  the  same  overt  act,  or  on  confession 
in  open  Court."  This  and  the  corresponding  lan- 
guage in  the  Act  of  Congress  of  the  30th  of  April, 
1790,  seems  to  refer  to  the  proofs  on  the  trial,  and 
not  to  the  preliminary  hearing  before  the  commit- 
ting magistrate,  or  the  proceeding  before  the  Grand 
Inquest.  There  can  be  no  conviction  after  arraign- 
ment on  bill  found.  The  previous  action  in  the  case 
is  not  a  trial,  and  cannot  convict,  whatever  be  the 
evidence  or  the  number  of  witnesses.  I  understand 
this  to  have  been  the  opinion  entertained  by  Chief 
Justice  Marshall,  1  Burrs  Trial,  196  :  and  though 
it  differs  from  that  expressed  by  Judge  Iredell,  on 
the  indictment  of  Fries,  1  TVhart.  Am.  St.  Tr._4S0. 
I  feel  authorized  to  recommend  it  to  you,  as  within 
the  terms  of  the  Constitution,  and  involving  no  in- 
justice to  the  accused. 

I  have  only  to  add,  that  treason  against  the  United 
States  may  "be  committed  by  any  one  resident  or 
sojourning"  within  its  territory  and  under  the  pro- 
lection  of  its  laws,  whether  he  be  a  citizen  or  an 
alien.  Tost.  C.  L...  1S3,  5:  1  Hale,  59,  60,  62:  1 
Hawk.,  ch.  17,  §  5  :  Eel.  3S. 

Besides  the  crime  of  treason,  which  I  have  thus 
noticed,  there  are  offences  of  minor  grades,  against 


the  Constitution  and  the  State,  some  or  other  of 
which  may  be  apparently  established  by  the  evi- 
dence that  will  come  before  you.  These  are  embraced 
in  the  Act  of  Congress,  of  the  30th  Sept.,  1790,  ch. 
9,  sec.  22,  on  the  subject  of  obstructing  or  resisting 
the  service  of  legal  process,  the  Act  of  the  2d  of 
March,  1831,  ch.  99,  sec.  2,  which  secures  the  jurors, 
witnesses,  and  officers  of  our  Courts  in  the  fearless, 
free,  and  impartial  administration  of  their  respective 
functions, — and  the  Act  of  the  ISth  of  September, 
1S50,  ch.  60,  which  relates  more  particularly  to  the 
rescue  or  attempted  rescue  of  a  fugitive  from  labor. 
These  Acts  were  made  the  subject  of  a  charge  to 
the  Grand  Jury  of  this  Court  in  Xovember  last,  of 
which  I  shall  direct  a  copy  to  be  laid  before  you; 
and  I  do  not  deem  it  necessary  to  repeat  their  pro- 
visions at  this  time. 

Gentlemen  of  the  Grand  Jury :  You  are  about  to 
enter  upon  a  most  grave  and  momentous  duty.  You 
will  be  careful,  in  performing  it,  not  to  permit  youx 
indignation  against  crime,  or  your  just  appreciation 
of  its  perilous  consequences,  to  influence  your  judg- 
ment of  the  guilt  of  those  who  may  be  charged  be- 
fore you  with  its  commission.  But  you  will  be 
careful,  also,  that  no  misguided  charity  shall  per- 
suade you  to  withhold  the  guilty  from  the  retribu- 
tions of  justice.  You  will  inquire  whether  an  offence 
has  been  committed,  what  was  its  legal  character, 
and  who  were  the  offenders, — and  this  done,  and 
this  only,  you  will  make  your  presentments  accord- 
ing to  the  evidence  and  the  law. 

Your  inquiries  will  not  be  restricted  to  the  con- 
duet  of  people  belonging  to  our  own  State.  If  in 
the  progress  of  them,  you  shall  find  that  men  have 
been  among  us,  who,  under  whatever  mask  of  con- 
science or  of  peace,  have  labored  to  incite  others  to 
treasonable  violence,  and  who,  after  arranging  the 
elements  of  the  mischief,  have  withdrawn  them- 
selves to  await  the  explosion  they  had  contrived, 
you  will  feel  yourselves  bound  to  present  the  fact  to 
the  Court :  and  however  distant  may  be  the  place 
]  in  which  the  offenders  may  have  sought  refuge,  we 
■  give  you  the  pledge  of  the  law  that  its  far-reaching 
energies  shall  be  exerted  to  bring  them  up  for  trial, 
— if  guilty,  to  punishment. 

The  offence  of  treason  is  not  triable  in  this  Court, 
j  But,  by  an  Act  of  Congress,  passed  on"  the  Sth  of 
j  August,  1S46,  ch.  93,  it  is  made  lawful  for  the  Grand 
;  Jury,  impannolled  and  sworn  in  the  District  Court, 
|  to  take  cognizance  of  all  indictments  for  crimes 
,  against  the  United  States,  within  the  jurisdiction  of 
j  either  of  the  Federal  Courts  of  the  District.  There 
\  being  no  Grand  Jury  in  attendance  at  this  time  in 
1  the  Circuit  Court,  to  pass  upon  the  accusations  I 
have  referred  to  in  the  first  instance,  it  has  fallen 
'  to  my  lot  to  assume  the  responsible  office  of  ex- 
'  pounding  to  you  the  law  in  regard  to  them.  I  have 
'  the  satisfaction  of  knowing,  that  if  the  views  I  have 
1  expressed  are  in  any  respect  erroneous,  they  must 
i  undergo  the  revision  of  my  learned  brother  of  the 
I  Supreme  Court,  who  presides  in  this  Circuit,  before 
j  they  can  operate  to  the  serious  prejudice  of  any  one; 
I  and"  that  if  they  are  doubtful  even,  provision  exists 
!  for  their  re-examination  in  the  highest  tribunal  of 
i  the  countrv. 


270 


APPENDIX. 


THE  GRAND  JURY  "WAS  COMPOSED  AS  FOLLOWS  : 

Grand  Inquest  for  the  United  States,  inquiring  for 
the  Eastern  District  of  Pennsylvania.  August  Term, 
1851. 

Thomas  B.  Florence,  Foreman;  John  H.  Diehl, 
John  Dolby,  Benjamin  Mifflin,  Isaac  Myer,  Andrew- 
Scott,  Ambrose  J.  White,  and  Gerhard  B.  Wilstach, 
Samuel  Castor,  Waters  Dewees,  Abraham  L.  Ger- 
hard, Nathan  L.  Keyser,  Isaac  Lamplugh,  Charles 
T.  Long,  William  G.  Mentz,  Adam  Mintzer,  Simon 
Mudge,  George  C.  Rickards,  Charles  Stockton,  and 
Alan  Wood. 

Who  having  retired  under  the  charge  of  the  Court, 
found  true  bills  for  treason  against  certain  persons, 


VIZ 

No. 

1. 

United  States 

v.  Castner  Hanway, 

u 

2. 

tt 

a 

Joseph  Scarlet, 

a 

3. 

tt 

ft 

Elijah  Lewis, 

a 

4. 

te 

tt 

James  Jackson, 

tt 

5. 

tt 

a 

George  Williams, 

a 

6. 

te 

Jacob  Moore, 

it 

7. 

a 

George  Reed, 

a 

8. 

t< 

a 

Benjamin  Johnson, 

it 

9. 

tt 

tt 

Daniel  Caulsberry, 

tt 

10. 

tt 

tt 

Alson  Pemsley, 

a 

11. 

tt 

tt 

William  Brown,  2nd. 

it 

12. 

tt 

ft 

Henry  Green, 

it 

13. 

tt 

ft 

Elijah  Clark, 

it 

14. 

tt 

tt 

John  Holliday, 

66 

15. 

a 

tt 

William  Williams, 
Benjamin  Pindergrast, 

it 

16. 

tt 

a 

tt 

17. 

tt 

it 

John  Morgan, 

it 

18. 

a 

it 

Ezekiel  Thompson, 

it 

19. 

a 

ft 

Thomas  Butler, 

a 

20. 

a 

tf 

Collister  Wilson, 

it 

21. 

a 

tt 

John  Jackson, 

it 

22. 

a 

tt 

William  Brown, 

tt 

23. 

tt 

tt 

Isai  ah  CI  arks  on, 

it 

24. 

a 

tt 

Henry  Sims, 

tt 

25. 

a 

tt 

Charles  Hunter, 

a 

26. 

tt 

a 

Lewis  Gates, 

tt 

27. 

tt 

a 

Peter  Woods, 

tt 

28. 

a 

tt 

Lewis  Clarkson, 

tt 

29. 

a 

a 

Nelson  Carter, 

tt 

30. 

a 

tt 

William  Parker, 

it 

31. 

a 

ft 

John  Berry, 

tt 

32. 

tt 

William  Berry, 

it 

33. 

tt 

tt 

Samuel  Williams, 

it 

34. 

tt 

a 

Josh  Hammond, 

it 

35. 

n 

a 

Henry  Curtis, 

it 

36. 

tt 

it 

Washington  Williamsv 

a 

37. 

tt 

ft 

William  Thomas, 

it 

38. 

tt 

it 

Nelson  Ford. 

Which  indictments  were  on  October  6, 1851,  remitted 
from  the  District  Court  to  the  Circuit  Court,  under 
the  Act  of  Congress,  approved  August  8,  1846. 

And  now,  October  6,  1851,  on  motion  of  John  W. 
Ashmead,  Attorney  for  the  United  States,  the  Court 
order  and  direct  that  a  venire  be  issued,  in  each  of 
the  aforesaid  cases,  to  the  marshal,  returnable  on 
the  fourth  Monday  of  November  next,  commanding 
him  to  summon  and  return  one  hundred  and  eight 
jurors,  for  the  trial  of  the  parties,  charged  with  levy- 
ing war  against  the  United  States  of  America,  in  the 
indictments  which  have  been  remitted  to  this  Court, 
by  the  District  Court  of  the  United  States,  for  the 
Eastern  District  of  Pennsylvania ;  and  that  twelve 
of  the  said  jurors,  so  returned,  in  each  case,  be  sum- 
moned and  returned  from  the  County  of  Lancaster, 
in  this  State ;  the  offences  of  the  said  defendants 
being  charged  to  have  been  perpetrated  in  the  said 
County  of  Lancaster. 

And  thereupon,  a  venire  was  issued  in  the  follow- 
ing form. 


The  United  States  of  America,  Eastern  ) 

District  of  Pennsylvania.  )  88' 

The  President  of  the  United  States,  to  the  Marshal 
[L.S.]  of  the  Eastern  District  of  Pennsylvania. 

Greeting.  We  command  you,  that  you  cause  to 
come  before  the  Judges  of  the  Circuit  Court  of  the 
United  States,  in  and  for  the  Eastern  District  of 
Pennsylvania,  in  the  Third  Circuit,  at  a  session  of 
the  said  Court,  to  be  holden  at  the  City  of  Philadel- 
phia, in  the  said  District,  on  the  fourth  Monday  oj 
November  next,  hereafter  ensuing,  a  number,  not  less 
than  one  hundred  and  eight  in  all,  of  good,  honest, 
and  lawful  men,  of  your  said  District,  (and  of  whom, 
twelve  at  least,  shall  be  of  the  County  of  Lancaster, 
in  the  said  District,)  of  which  said,  good,  honest,  and 
lawful  men,  none  shall  be  of  affinity  to  Castner  Han- 
way, Joseph  Scarlet,  Elijah  Lewis,  James  Jackson, 
George  Williams,  Jacob  Moore,  George  Reed,  Ben- 
jamin Johnson,  Daniel  Caulsberry,  Alson  Pernsley, 
William  Brown,  2nd.,  Henry  Green,  Elijah  Clark, 
John  Holliday,  William  Williams,  Benjamin  Pinder- 
grast, John  Morgan,  Ezekial  Thompson,  Thomas  But- 
ler, Collister  Wilson,  John  Jackson,  William  Brown, 
Isaiah  Clarkson,  Henry  Sims,  Charles  Hunter,  Lewis 
Gales,  Peter  Woods,  Lewis  Clarkson,  Nelson  Carter, 
William  Parker,  John  Berry,  William  Berry,  Samuel 
Williams,  Joshua  Hammond,  Henry  Curtis,  Washing- 
ton Williams,  William  Thomas,  or  Nelson  Ford,  late  ot 
the  said  District,  to  recognize  upon  their  oaths  and  af- 
firmations as  Petit  Jurors,  whether  the  said  Castner 
Hanway,  Joseph  Scarlet,  Elijah  Lewis,  James  Jack- 
son, George  Williams,  Jacob  Moore,  George  Reed, 
Benjamin  Johnson,  Daniel  Caulsberry,  Alson  Parns- 
)ey,  William  Brown,  2nd.  Henry  Green,  Elijah  Clark, 
John  Holliday,  William  Williams,  Benjamin  Pinder- 
grast, John  Morgan,  Ezekiel  Thompson,  Thomas 
Butler,  Collister  Wilson,  John  Jackson,  William 
Brown,  Isaiah  Clarkson,  Henry  Sims,  Charles  Hun- 
ter, Lewis  Gales,  Peter  Woods,  Lewis  Clarkson, 
Nelson  Carter,  William  Parker,  John  Berry,  William 
Berry,  Samuel  Williams,  Joshua  Hammond,  Henry 
Curtis,  Washington  Williams,  William  Thomas,  or 
Nelson  Ford,  late  of  the  said  District,  or  any  or 
either  of  them  be  guilty  of  certain  treasons  against 
the  United  States,  whereof  they  severally  stand 
charged,  m  certain  indictments  now  pending  in  the 
said  Court,  and  to  be  tried  at  the  bar  thereof,  or  not 
guilty  ;  and  also  to  do,  execute,  and  perform,  all  and 
singular  those  matters  and  things,  which,  on  behalf 
of  the  United  States,  shall  then  and  there  be  re- 
quired of  them.  And  have  you  then  and  there,  the 
names  and  addition,  and  places  of  abode  of  the  said 
good,  honest,  and  lawful  men,  whom  you  shall  so 
cause  to  come.  And  be  you  then  there,  together 
with  your  ministers,  to  do  those  things  which  per- 
tain to  your  office.    And  bring  with  you  their  writ. 

Witness  the  Honorable  Roger  B.  Taney,  Chief 
Justice  of  the  Supreme  Court  of  the  United  States,  at 
Philadelphia,  this  ninth  day  of  October,  A.  D.  1851, 
and  in  the  seventy-sixth  year  of  the  independence  of 
the  said  United  States.         GEORGE  PLITT, 

Clerk  of  the  Circuit  Court. 

To  which  the  Marshal  makes  return  : 

To  the  Honorable,  the  Judges  of  the  Circuit  Court 
of  the  United  States,  in  and  for  the  Eastern  District 
of  Pennsylvania. 

I  do  certify,  that  I  have  summoned  and  com- 
manded one  hundred  and  sixteen  good,  honest,  and 
lawful  men,  of  the  Eastern  District  of  Pennsylvania, 
to  serve  as  Petit  Jurors,  and  the  names  and  sur- 
names of  the  persons  so  summoned,  with  their  addi- 
tions, respectively  are  in  a  panel  hereto  annexed. 
So  answers  and  certifies, 

A.  E.  ROBERTS,  Marshal. 


APPENDIX. 


271 


Panel  of  Petit  Jurors,  selected  and  returned  in 
pursuance  of  a  special  venire,  for  October  Ses- 
sion, Anno  Domini,  1851. 

To  be  bolden  on  Monday,  November  24th,  1851, 
at  eleven  o'clock,  A.M.,  at  the  United  States  Court 
Room,  (Independence  Hall,)  Chestnut  street,  be- 
tween  Delaware  Fifth  and  Sixth  streets,  in  the  City 
of  Philadelphia. 

1  Adams,  Peter,  Farmer,  Mohrsville  P.O.,  Berks 

County. 

2  Baldwin/ Matthias  W.,  Machinist,  335  Spruee  ' 

Street,  Philadelphia. 

3  Barclay,  Andrew  C,  Gentleman,  147  Arch  Street, 

Philadelphia. 

4  Bazley,  John  T.,  Gentleman,  Doylestown,  Bucks 

.  County. 

5  Beck,  John,  Professor,  Litiz,  Lancaster  Co. 

6  Bell,  Samuel,  Gentleman,  Reading,  Berks  Co. 

7  Brady,    Patrick,  Merchant,  397   Arch  Street, 

Philadelphia. 

8  Breck,  Samuel,  Gentleman,  Arch  Street,  west  of  j 

Broad,  Philadelphia. 

9  Brinton,  Ferree,  Merchant,  Belmont  P.O.,  Lan-  I 

caster  Co. 

10  Brodhead,  Albert  G.,  Farmer,  Delaware,  P.O.,  I 

Pike  Co. 

11  Brown,  John  A.,  Merchant,  S.  E.  corner  Twelfth 

and  Chestnut  Streets,  Phila. 

12  Brown,  Joseph  D.,  Gentleman,  167  Arch  Street, 

Philadelphia. 

13  Brush,  Goerge  G.,  Merchant,  "Washington,  Lan- 

caster Co. 

14  Butler,  Robert,  Clerk,  Maueh   Chunk,  Carbon 

County. 

15  Cadwalader.  George,  Gentleman,  299  Chestnut 

Street,  Philadelphia. 

16  Cameron,  S  iinon ,  Gentleman,  Middletown,  Dau- 

phin Co. 

17  Campbell,  Hugh,  Merchant,  33  Girard  Street,  j 

Philadelphia. 

18  Clendenin,  John,  Gentleman,  Hoagstown,  Cum- 

berland County. 
39  Coekley,  David,  Machinist,  Lancaster  City. 

20  Cook,  Jonathan,  Gentleman,  Allentown,  Lehigh  j 

County. 

21  Coolbaugh,  Moses  W.,  Farmer,  Coolbaugh  P.O., 

Monroe  County. 

22  Connelly,  Thomas,  Carpenter,  Beaver  Meadow, 

Carbon  County. 

23  Cope,   Caleb,  Merchant,   'Walnut   and  Quince 

Streets,  Philadelphia. 

24  Cowden,  James,  Merchant,  Columbia,  Lancaster 

Pounty. 

25  Culbertson,  Joseph,  Gentleman,  Chambersburg, 

Franklin  County. 

26  Darby,  John,  Gentleman,  Fayetteville,  Franklin 

County. 

27  Davies,  Edward,  Gentleman,  Churchtown,  Lan- 

caster  Co. 

2S  Deshong,  John  0.,  Gentleman,  Chester,  Delaware 
County. 

29  Diller,  Solomon,  Farmer,  New  Holland,  Lancas- , 

ter  County. 

30  Elder,  Joshua,   Farmer,  Harrisburg,  Dauphin 

County. 

31  Dillinger,  Jacob,  Gentleman,  Allentown,  Lehigh  J 

County. 

32  Elliot,  Robert,  Farmer,  Ickesburg,  Perry  Co.  ! 


50 


Ewing,  Robert,  Merchant,  446  Walnut  Street, 
Philadelphia. 

Fenton,  Ephraim,  Farmer,  Upper  Dublin,  P.O., 
Montgomery  Co. 

Fraley,  Frederick,  Gentleman,  365  Race  Street, 
Philadelphia. 

George.  David.  Gentleman.  Blockley,  West  Phila- 
delphia P.O.,  Philadelphia  Co. 

Gowen,  James,  Gentleman,  Germantown,  Phila- 
delphia Co. 

Grosh,  Jacob,  Gentleman,  Marietta,  Lancaster 
County. 

Hammer,  Jacob,  Merchant,  Orwigsburg,  Schuyl- 
kill Co. 

Harper,  James,  Gentleman,  Walnut  and  Schuyl- 
kill Fifth  Streets,  Philadelphia. 

Hazard,  Erskine,  Gentleman,  Ninth  and  Chestnut 
Streets,  Philadelphia. 

Hippie,  Frederick,  Farmer,  Bainbridge,  Lancas- 
ter County. 

Hitner,  Daniel  O.,  Farmer,  Whitemarsh,  Mont- 
gomery County. 

Hopkins,  James  M.,  Farmer,  Buck  P.  O.,  Dru- 
more  Township,  Lancaster  County. 

Horn,  John,  Gentleman,  16  Broad  Street,  Phila. 

Hummel.  Valentine,  Merchant,  Harrisburg,  Dau- 
phin Co. 

Jenks,  Michael  H.,  Gentleman,  Newton,  Bucks 
County. 

Junkin,  John,  Farmer,  Landisburg,  Perry  Co. 
Keim,  William  H.,  Merchant,  Reading,  Berks 
County. 

Keyser,  Elhanan  W.,  Merchant,  144  North  Ninth 

Street,  Philadelphia. 
Kichline,  Jacob,  Farmer,  Lower  Saucon  P.  O., 

Northampton  Co. 
Kinnard,  John  H.,  Farmer,  West  Whiteland, 

P.O.,  Chester  Co. 
Krause.  John,  Clerk,  Lebanon,  Lebanon  Co. 
Kuhn,  Hartman,  Gentleman,  314  Chestnut  Street, 

Philadelphia. 
Ladley,  George,  Farmer,  Oxford  P.O.,  Chester 

County. 

Leiper,  George  G.,  Farmer,  Leiperville,  Dela- 
ware Co. 

Lewis,  Lawrence,  Gentleman,  345  Chestnut  Street 

Philadelphia. 
Luther,  Diller,  Gentleman,  Reading,  Berks  Co.  j 
Lyons,  David,  Farmer,  Haverford  P.O.,  Dela- 
ware Co. 

McConkey,  James,  Merchant,  Peachbottom  P.O., 

Tork  County. 
Mcllvaine,  Abraham  R.,  Farmer,  Wallace  P.O., 

Chester  County. 
McKean,  Thomas,  Gentleman,  356  Spruce  St., 

Philadelphia. 
Madeira,  George  A.,  Gentleman,  Chambersburg, 

Franklin  County. 
Mark,  George,  Gentleman,  Lebanon,  Lebanon  Co. 
Martin,  Peter,  Surveyor,  Ephrata  P.O.,  Lan- 
caster County, 
Massey,  Charles,  Merchant,  170  Arch  Street, 

Philadelphia. 
Mather,  Isaac,  Farmer,  Jenkintown,  Montgomery 

County. 

Merkle,  Levi,  Farmer,  Shiremanstown,  Cumber- 
land County. 

Michler,  Peter  S.,  Merchant,  Easton,  Northamp- 
ton Co. 

Miller,  John,  Gentleman,  Reading,  Berks  Co. 

Moore,  Marmaduke,  Merchant,  153  North  Thir- 
teenth Street,  Philadelphia. 

Morton,  Sketchley,  Farmer,  Gibbon's  Tavern, 
P.O.,  Delaware  Countv. 


272 


APPENDIX. 


73  Myers,  Isaac,  Merchant,  Port  Carbon,  Schuyl- 

kill County. 

74  Neff,  John  R.,  Merchant,  124  Spruce  Street, 

Philadelphia. 

75  Newcomer,  Martin,  Innkeeper,  Chambersburg, 

Franklin  Connty. 

76  Newman,  Solomon,  Smith,  Milford,  Pike  Co. 

77  Palmer,  Strange  N.,  Editor,  Pottsville,  Schuyl- 

kill County. 

78  Patterson,   Robert,   Merchant,   S.  W.  corner 

Thirteenth  and  Locust  Streets. 

79  Penny,  James,  Farmer,  Liberty  Square  P.O., 

Drumore  Township,  Lancaster  County. 

80  Piatt,  William,  Merchant,  343  Chestnut  Street, 

Philadelphia. 

81  Preston,  Paul  S.,  Merchant,  Stockport,  Wayne 

County. 

82  Reynolds,  John,  Gentleman,  Lancaster  City. 

83  Rich,  Josiah,  Farmer,  Danboro  P.O.,  Bucks 

County. 

84  Richards,  Matthias,  Gentleman,  Reading,  Berks 

County. 

85  Richardson,  John,  Gentleman,  Spruce  Street, 

west  of  Broad,  Philadelphia. 

86  Rogers,  Evan,  Gentleman,  Locust  Street  and 

Washington  Square. 

87  Ross,  Hugh,  Farmer,  Lower  Chanceford  P.O., 

York  County. 

88  Rupp,  John,  Farmer,  Mechanicksburg  P.O., 

Hampden  Township,  Cumberland  County. 

89  Rutherford,  John  B.,  Farmer,  Harrisburg,  Dau- 

phin County. 

90  Saddler,  William  R.,   Farmer,  York  Sulphur 

Springs  P.O.,  Adams  County. 

91  Saylor,  Charles,  Merchant,  Saylorsburg,  Monroe 

County. 

92  Schroeder,   John   S.,  Clerk,   Reading,  Berks 

County. 

93  Small,  Samuel,  Merchant,  York,  York  County. 

94  Smith,  George,  Farmer,  Upper  Darby  P.O., 

Delaware  County. 


95  Smith,  John,  Smith,  Jenkintown,  Montgomery 

County. 

96  Smith,  Robert,  Gentleman,  Gettysburg,  Adams 

County. 

97  Smyser,  Philip,  Gentleman,  York,  York  County. 

98  Starbird,  Franklin,  Farmer,  Stroudsburg,  Mon- 

roe County. 

99  Stavely,  William,  Farmer,  Lahasha  P.O.,  Bucks 

County. 

100  Stevens,  William,   Merchant,  Whitehallville, 

Bucks  County. 

101  Stokes,  Samuel  E.,  Merchant,  39  Arch  Street, 

Philadelphia. 

102  Taylor,  Caleb  N.,  Farmer,  Newportville,  Bucks 

County. 

103  Toland,  George  W.,  Gentleman,  178  Arch  Street, 

Philadelphia. 

104  Trexler,  Lesher,  Gentleman,  Allentown,  Lehigh 

County. 

105  Wainwright,  Jonathan,  Merchant,  Beach,  below 

Hanover  Street,  Philadelphia. 

106  Walsh,  Robert  F.,  Merchant,  5  Girard  Street, 

Philadelphia. 

107  Watmough,  John  G.,  Gentleman,  Germantown, 

Philadelphia  County. 

108  Watson,  William,  Farmer,  Mechanicsville,  Bucks 

County. 

109  West,  David,  Farmer,  Kimberton,  Chester  Co. 

110  White,  Thomas  H.,  Gentleman,  N.W.  corner  of 

Ninth  and  Spruce  Streets,  Philadelphia. 

111  Whitehall,  James,  Gentleman,  Lancaster  City. 

112  Witman,  Andrew  K.,  Farmer,  Centre  Valley 

P.O.,  Lehigh  County. 

113  Williamson,  William,  Gentleman,  West  Chester, 

Chester  County. 

114  Wilson,   James,   Gentleman,   Fairfield  P.O., 

Adams  County. 

115  Vanzant,  Franklin,  Farmer,   Attleboro  P.O., 

Bucks  County. 

116  Yohe,  Samuel,  Gentleman,  Easton,  Northamp- 

ton County. 


Names,  age,  occupation,  and  residence  of  the  Jurors,  impannelled  to  try  the  case  of  the 

United  States  v.  Hanway. 


JAMES  WILSON,  

age 

73 
69 

years 

ROBERT  ELLIOTT,  

...Pike   " 

tt 

JONATHAN  WAINWRIGHT,. 

County, 

u 

66 

(C 

ROBERT  SMITH,  

« 

a 

57 

a 

JOHN  JENKIN,  

tt 

u 

56 

tt 

THOMAS  CONNELLY,  

(i 

ft 

54 

(i 

EPHRAIM  FENTON,  

a 

52 

it 

SOLOMON  NEWMAN,  

..Smith,  

...Pike  

it 

a 

48 

a 

PETER  MARTIN,  

(( 

it 

46 

<( 

WILLIAM  R.  SADLER,, 

(I 

a 

4 1 

it 

JAMES  M.  HOPKINS,  

(C 

(( 

50 

tt 

JAMES  COWDEN  

ii 

36 

a 

53 

a 

Statement  of  the  points  of  law,  decided  by  the  Court,  during  this  Trial. 

1.  In  conducting  the  challenges,  the  practice  is  for  the  defendant  first  to 
challenge  ;  and  if  he  makes  no  challenge,  the  prosecution  may  then  address  the 
juror,  such  questions  for  testing  his  impartiality  as  the  court  may  approve. 

2.  In  case  of  the  juror  not  being  set  aside  for  favor  upon  his  answers  to  such 
questions,  he  may  nevertheless  be  set  aside  by  the  prosecution  until  the  panel 
be  exhausted, 

3.  When  the  panel  is  exhausted,  however,  such  set  aside  juror  must  be  sworn, 
>  unless  sufficient  cause  for  his  rejection  be  shown  defendant. 

4.  The  defendant  not  having  exercised  his  right  of  peremptory  challenge, 
when  the  juror  was  first  before  the  court,  being  considered  to  have  waived  it, 
he  cannot  exercise  it  when  the  juror  is  recalled,    (pp.  22,  43.) 

The  following  questions  were  allowed  by  the  court,  and  sustained  as  proper 
to  be  put  to  the  jurors  by  the  prosecution : 

I.  Have  you  any  conscientious  scruples  upon  the  subject  of  capital  punish- 
ment, so  that  you  would  not,  because  you  conscientiously  could  not  render  a 
verdict  of  guilty,  death  being  the  punishment,  though  the  evidence  required  such 
a  verdict  ? 

II.  Have  you  formed  or  expressed  any  opinion  relative  to  the  matter  now  to 
be  tried? 

III.  Are  you  sensible  of  any  such  prejudice  or  bias  therein,  as  may  affect  your 
action  as  a  juror  ? 

IV.  Have  you  formed  or  expressed  any  opinion  as  to  the  guilt  or  innocence 
of  the  accused,  or  of  the  other  persons  alleged  to  have  participated  with  him 
in  the  offence  charged  against  him  in  the  indictment? 

V.  Have  you  heard  any  thing  of  this  case  which  has  induced  you  to  make  up 
your  mind  as  to  whether  the  offence  charged  in  the  indictment  constitutes 
treason  or  not  ? 

VI.  Have  you  formed  an  opinion  that  the  law  of  the  United  States,  known  as 
the  Fugitive  Slave  Law  of  1850,  is  unconstitutional,  so  that  you  cannot  for 
that  reason,  convict  a  person  indicted  for  a  forcible  resistance  thereto,  if  the 
facts  alleged  in  the  indictment  are  proved  and  the^court  hold  the  statute  to 
be  constitutional,    (p.  23.) 

The  defence  were  allowed  to  challenge  for  cause,  a  juror  who  had  formed,  but 
not  expressed  an  opinion,  that  the  offence  of  the  prisoner  was  treason,  (p.  25.) 

It  is  not  cause  for  challenge  that  the  juror  answers,  "if  this  is  not  treason,  I 
do  not  see  how  treason  against  the  United  States  can  be  levied,"  the  juror  not 
having  made  up  his  mind  upon  the  law,  but  to  a  certain  inference  that  might 
arise  from  a  statement  of  the  law  by  the  court,   (p.  27.) 

A  juror  whose  mind  is  made  up  that  the  offence  committed  by  the  prisoner 
is  not  treason  ;  is  incompetent,    (pp.  27,  28.) 

The  question  allowed  to  be  put  are  to  be  asked  by  the  prosecution,  not  by 
the  Court,    (p.  30.) 

Conscientious  scruples  as  to  capital  punishment  renders  a  juror  incompetent, 
(p.  30.) 

A  juror  who  says  he  has  made  up  his  mind  "as  to  the  subject  of  treason, 
provided  the  facts  are  proved  against  the  prisoner,  not  as  to  the  guilt  of  the 
prisoner,"  is  incompetent,    (p.  33.) 

A  juror  who  in  reply  to  the  question  whether  he  has  made  up  his  mind, 
"whether  the  offence  charged  in  the  indictment  constitutes  treason  or  not," 

273 


274 


STATEMENT  OF  THE  POINTS  OP  LAW,  DECIDED 


says,  "  I  take  it  to  be  pretty  near  a  similar  case  to  the  Fries'  matter  which 
happened  at  the  place  where  I  was  from" — was  held  to  be  incompetent,    (p.  39.) 

It  was  held,  however,  not  cause  for  challenge  that  the  juror  should  think, 
"  the  laws  were  outraged  at  Christiana."    (p.  39.) 

So  also  it  was  no  cause  for  challenge  that  the  juror  should  have  expressed 
an  unfavorable  opinion  of  "  those  gentlemen,"  the  defendants  and  others  alleged 
to  have  been  concerned,    (p.  41.) 

The  court  directed  that  all  witnesses  who  would  be  called  to  testify  to  the 
same  state  of  facts,  should  be  excluded  during  the  examination  of  any  one  of 
them.    (p.  55.) 

The  prosecution  are  bound  to  exhaust  their  questions  to. a  witness  on  the 
examination  in  chief.  Where,  however,  they  have  omitted  any  material  point 
they  may  ask  it,  even  after  the  cross-examination  is  finished,    (p.  80.) 

A  witness  recalled  by  the  prosecution  must  only  be  examined  as  to  new 
matter.    To  ask  him  to  repeat  what  he  said  before  is  irregular,    (p.  93.) 

Evidence  that  a  witness,  in  a  previous  examination,  made  the  same  statement 
as  in  the  case  at  issue,  and  that  neither  statement  agrees  with  others  made 
when  not  upon  oath,  is  irrelevant,    (p.  84.) 

1.  Evidence  of  an  asserted  overt  act,  may  be  admitted  as  part  of  the  res  gestae, 
although  the  defendant  is  not  connected  therewith. 

2.  To  prove  a  treasonable  intent  to  resist  the  execution  of  the  Fugitive  Slave 
Law,  it  was  held  admissible  to  show  antecedent  preparation,  to  advise  the 
parties  connected  with  certain  fugitive  slaves,  whose  reclamation  was  sought, 
of  the  fact  that  process  was  about  to  issue  against  them.    (p.  98.) 

Evidence  that  the  organization,  alleged  to  be  treasonable,  arose  from  the 
fact  that  a  feeling  of  insecurity  existed  among  certain  parties  in  a  particular 
neighborhood,  owing  to  previous  successful  attempts  on  the  part  of  "kid- 
nappers," was  admitted.  "  There  may  be  many  ways  of  proving  such  a  belief, 
none  better,  perhaps,  than  by  proving  the  facts  on  which  such  belief  was 
founded,  and  if  the  belief  exists,  it  might  be  proved,  though  not  founded  on 
facts."    (p.  114.) 

The  prosecution  have  no  right  to  cross-examine  as  to  matters  not  brought 
out  by  the  examination  in  chief.  "If  you  want  the  witness,  you  should 
produce  him  yourself."    (p.  117.) 

A  party  who  is  indicted  jointly  with  the  prisoner  in  another  bill,  but  not  in 
the  present,  is  a  competent  witness  for  the  defence,    (p.  120.) 

A  witness  whose  testimony  is  sought  to  be  impeached,  has  a  right  to  be  in 
Court,  notwithstanding  the  rule  excluding  all  witnesses,    (p.  144.) 

Evidence  of  previous  good  character  of  defendant  may  be  introduced  in  a 
trial  for  treason,    (p.  144.) 

Newspaper  paragraphs  are  not  proper  to  be  read  in  the  opening  of  counsel, 
(p.  148.) 

It  is  improper  to  ask,  on  cross-examination,  of  a  witness  who  has  been  called 
to  sustain  the  character  of  a  previous  witness,  whether  he  "  ever  heard  that  he 
was  a  pickpocket  in  New  York."  "  The  question  assumes  the  fact,  and  leaves 
the  inference  that  it  exists  by  asking  the  witness  if  he  heard  it." 

Testimony  that  would  have  been  evidence  in  chief  cannot  be  introduced  in 
rebuttal  of  collateral  matter  introduced  by  the  defence,  although  the  existence 
of  the  evidence  was  not  known  to  the  prosecution  before  their  case  closed, 
(p.  162.) 


BY  THE  COURT,  DURING  THIS  TRIAL. 


275 


To  show  that  the  intent  was  not  treasonable,  the  defence  produced  evidence 
of  a  man  being  carried  off  without  process,  in  the  night-time,  and  endeavored 
to  explain  the  organization  by  that  fact.  The  prosecution  offered  to  show  in 
rebuttal  that  the  man  so  carried  off,  was  a  slave,  which  was  ruled  out.  (p.  164.) 

In  order  to  a  conviction  of  the  crime  of  treason,  the  defendant  must  have 
intended  to  levy  war  against  the  United  States,  or  the  overt  acts  have  been 
committed  by  himself  and  others  in  pursuance  of  such  conspiracy  or  preconcert 
for  that  purpose;  and  the  determination  of  this  is  for  the  jury,  under  the 
direction  of  the  court.    Charge  of  Judge  G-rier,  p.  241. 

The  crime  of  treason  is  not  to  be  extended  by  construction  to  doubtful 
cases.  Ibid. 

The  "  levying  war  against  the  United  States,"  is  not  necessarily  to  be 
judged  of  by  the  number  and  array  of  troops.  But  there  must  be  a  conspiracy 
to  resist  by  force,  and  an  actual  resistance  by  force  of  arms,  or  intimidation  by 
numbers.  The  conspiracy  and  the  insurrection  connected  with  it  must  be  to 
affect  something  of  a  public  nature,  to  overthrow  the  government,  or  to  nullify 
some  law  of  the  United  States,  and  totally  to  hinder  its  execution,  or  compel 
its  repeal.  Ibid. 

The  combination  of  a  number  of  persons  to  resist  by  force  the  execution  of  a 
particular  law  against  any  of  themselves,  is  not  of  itself  treason,  though  riot 
or  murder  be  committed  in  carrying  it  into  effect,    (p.  247-) 

Treason  is  a  mixed  question  of  law  and  fact.  Ibid. 

In  treason  all  are  principals,  and  a  defendant  may  be  guilty  of  aiding  and 
abetting  therein,  though  not  present  at  any  overt  act.  Ibid. 

But  where  a  number  of  persons  are  engaged  in  a  traitorous  resistance  to  the 
execution  of  an  act  of  the  United  States — in  the  particular  case  the  Fugitive 
Slave  Act — and  a  person  is  present  at  the  time,  without  having  any  previous 
knowledge  of  what  was  about  to  take  place,  and  takes  no  part  therein,  or  if  he 
merely  stands  neutral  through  fear  of  bodily  harm,  or  because  he  is  conscien- 
tiously scrupulous  about  assisting  to  arrest  a  fugitive  from  labor,  and,  there- 
fore, merely  refuses  to  interfere,  without  encouraging,  aiding,  and  abetting  the 
offenders,  he  is  not  guilty  of  treason,  though  he  may  be  liable  to  punishment 
for  his  refusal  to  interfere,  by  fine  and  imprisonment.  Ibid. 

Congress  has  no  power  to  enlarge,  restrain,  construe,  or  define  the  offence 
of  treason ;  the  construction  of  the  article  in  the  constitution  is  entrusted  to 
the  courts  alone.  Ibid. 

The  owner  of  certain  fugitive  slaves,  accompanied  by  an  officer  with  a 
warrant  for  their  arrest,  under  the  act  of  1850,  and  by  some  other  persons, 
went  about  daybreak  to  a  house  in  which  the  slaves  were  secreted,  and 
demanded  their  delivery,  the  warrant  being  read.  On  their  approach,  a 
signal  was  given,  and  in  a  short  time  a  large  number  of  armed  negroes  col- 
lected, by  whom  they  were  attacked,  the  owner  of  the  slaves  killed,  and  others 
wounded.  There  was  no  proof  of  any  previous  conspiracy  to  make  a  general 
and  public  resistance  to  the  act  of  Congress,  nor  that  the  negroes  had  a 
knowledge  of  the  existence  of  the  act,  or  had  any  other  object  than  mutual 
protection  from  capture.  It  appeared,  also,  that  on  several  previous  occasions 
negroes  had  been  seized  at  night,  in  their  houses,  as  slaves,  without  process  or 
any  authority  from  their  alleged  masters.    Held,  not  to  be  treason.  Ibid. 

A  defendant,  after  acquittal,  is  not  entitled  to  demand  of  the  United  States, 
pay  for  the  witnesses  summoned  for  his  defence,    (p.  260-61.) 


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